Ethics Master Summary - Fall 2017Prof. Cristina Toteda

Dear 2Ls,

This summary is a joint effort between ~40 students. I have compiled their contributions so that we may all brave the nebulous unknown that is the Legal Ethics & Professionalism final exam.

There will be a second installment to this summary, which will include the notes from the ‘Professionalism in Context’ series. To access it, please see annex 86 to schedule R, which you can find under the Assignment tab’s subsection’s feedback function on MyCourses. You will receive a grade of 1/2. (Just kidding, I’ll post it to Facebook at the end of November.)

May we all get a B,Jessica Cytryn

Unit I: Welcome to the Profession

CLASS 2 - The Regulation of the Legal Profession

Topics for reflection and discussion:· Who regulates the legal profession and why? Does this model work?

· Regulation: purpose to protect the public by safeguarding against those who are misbehaving

o Barreau du Québec: “afin d’assurer la protection du public” Canadian means of regulating lawyers

· Self-regulation: done by all the barso Lawyers look over lawyerso Regulation of entry – all lawyers must be a membero Regulation of conduct

§ Detailed rules of conduct§ Discipline

o Other functions of the barreau du Québec: insurance schemes, continuing education, lawyer support services, hotline

· Law societies practice cooperative federalism, all provincial societies get together for some things for ex: model rules

Regulation of Entry

· Education requiremento Not much supervision of the courses

· Bar admission course/exam

o Including “good character”· Articling

o May not prepare you as there are not many requirements (2 reports)

o Not integrated in education at allo No standardization

· “Good Character” requiremento perhaps unfair because does not ask for proof in QC, you answer

questions and your character is assessedo Law Society Act RSO 1990 c L.8

· Self-regulationo The unauthorized practice of law

§ Ex: ON bar fought against TO legal clinico Lawyer conduct

§ Codes of conduct§ Discipline

· Not punitive, sanctions to protect the publico Yes: lawyer best suited to carry out the requirementso No: not transparent or accountable

Richard Devlin and Porter Heffernan, “The End(s) of Self Regulation(?)” (2008) 45 Alta L Rev 169.

Assumptions: question themConclusions: don’t make them too quickly General arguments:Pro: A+E = I (Autonomy + expertise = independence from stat regulation and

market forces)1. Independence of the Bar

· Often goes unquestioned and unqualified. Must be free from state interference.

· Must be accountable but have authority to make decisions· Iacobucci: “Self-governing of legal profession was created in the

public interest”2. Independence of the judiciary3. Democracy, freedom and the rule of law

· Independent legal profession only if self-regulating. And required to maintain rule of law (circular argument?)

4. Public confidence in the legal profession· Control of the state = can lawyers defend clients against the state?· Done and seen to be done

5. Tradition6. Expertise

· Rules are and must be nuanced and complex· No one knows better than a fellow lawyer whether or not a brother

lawyer has become a transgressor.7. Efficiency

· Pay to be part of order = no extra govt bureaucracy, no tax dollars.8. Higher standards

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· Internal checks and consequences on conduct, direct reaction9. Commitment to the public good

· Psychological: given a privilege = contribute to the public goo I. Less present if not self-regulated (I don’t really see how)

Con: should we allow the fox to guard the chickens. Self-regulation is a privilege

not a right, bargain of power to give back to public interest, and they have failed.

1. Conflict of interest· Representative and regulatory function at once, constitutive conflict

of interest. –· Concerns of lawyers are not always those of the public· Public perception: will see/think that lawyers put themselves before

the public.· Ex. Doctors have 2 organizations, one regulatory one representative

2. Monopoly/Market control· Left and right argument, economic· Regulation = limits supply of legal services therefore inflating prices.

Do not appeal to consumers.· Competition: increases service quality and decreases prices

3. Independence: really….and from whom· Analytical clarity: independence does not necessarily = self-

governance. Independence is from executive, can be achieved w/o self-governance.

· Reality check: state is not the only power/control. Corporations are a bigger threat to independence of profession.

· Historical accuracy: independence is recent, lawyers not always on the side of justice.

4. Undemocratic· Not all democracies have self-regulating legal professions (and vice-

versa)!· Lawyers want self-regulation; it is not a public demand.· Fragmented profession and society not represented.

5. Protection Racket· Reporting of fellow lawyers is rare. Despite expertise to know, they

will not denounce.· Lenient sentences, too sensitive to other lawyers’ situations· Complaint processes are not consumer friendly, minimal reaction or

consequence6. Reactive and inefficient institutional culture

· Underfunded and understaffed law societies = operate reactively· Can commence investigation without a complaint but rarely do so

7. Psychological Critique8. Public Relations Exercise

· Self-governance creates the appearance of responsibility and accountability but no the reality.

· Synopsis: Regulation is complex = admission, standards, discipline Problems:

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Asserted claims are general, empirical data rarely provided. Creates an culture of “for or against” Yet regulation is complex conceptually and pragmatically. Stakes are high. Challenge is to open the dialogue.

McGill Law Journal podcast “Lawyers We Can Trust? The Good Character and Mental Fitness Requirements”, available at

http://lawjournal.mcgill.ca/en/text/96

● Good character and mental fitness● What constitutes proof of good moral character?● Moral character in legal profession is an old concept

○ In 18th century it was used to safeguard the privilege of the legal profession

● Characteristics of legal professionals: integrity, candor, honesty, empathy● Barreau asks about (1) addictions and (2) if you're seeing a mental health

professional● Moral character is a statutory requirement

○ Meant to provide assurance to profession and public● Questions on admissions to barreau include criminal record, human rights

violations, etc● Bad versus suitable to practice law● Moral tone associated with good/bad, moral tone is suggested when we talk

of a legal professional with good character● There's an assumption that the thing you did speaks to your character, and

that we can make predictions on future behavior○ Very little correlation supporting this though - however male lawyers

tend to be slightly more likely to repeat past behavior● Issues of character can be raised by third parties - at this point there is an

investigation (most cases end at this phase)○ If investigation goes further the case goes to a hearing

● We should care about this! These involved issues of fairness, for the most part these processes are all arbitrary, there is an issue of humanity

● Are we morally and culturally conflicted with changing standards for the legal profession?

● Should we change the name to suitability? Would Karla Homolka be a suitable lawyer? Consider how someone with a criminal past may actually be a good criminal lawyer

CLASS 3 - Legal Ethics and Professionalism

• Recap of class• More on regulation• Last week we saw its very regulated• And state sanctioned monopoly• Self regulation is not the only way they are regulated

◦ Suits against lawyers - judgements◦ Just barreau reprimands are not good enough for people, they want money

by suing

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• Lawyers have fiduciary duties• Courts not bound by Model Code of Professional Conduct

◦ More for law societies◦ Standard: "the reasonably competent lawyer"

• Another way of regulation: cultural practices and norms

E/P• Who decides what is ethical• How distinguish a professional/ethical lawyer from a non?• Law society decides this

Ethics:1. Ethical obligations of the practicing lawyer and the individual and org level2. Constraints on lawyer conduct: rules, principles and legal obligations

A. Constraint or something you aspire to?3. Moral or ethical aspirations of the practicing lawyer4. "How one should live in the context of law" - Farrow

Professionalism:1. Definition of profession in slides - Harvard dean from 60s or 70s

A. The reason is why you are here is for a bigger purpose2. The conduct, aims, or qualities that characterize or mark a profession or professional person

Word cloud• Empathy, honesty, integrity• But empathy does not show up even once in Model Code

◦ This is a professionalism trait

For role model:• Obama family LOL

Stages of ethical deliberation• Moral sensitivity: discomfort• Moral judgment• Moral conviction

◦ Hardest stage◦ Only valid if you actually implement

Sources of legal ethics1. Case law and legislation: ex. 14572. Rules of professional conduct

A. Duties owed to people B. Rules regarding advertising, soliciting, etc

3. Disciplinary decisions4. Norms of lawyering

Benchers: ones that decides what is ethical? ElectedWhat does it mean to be an ethical lawyer? SEE SLIDES

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Trevor C.W. Farrow, “Sustainable Professionalism” (2008) 46 Osgoode Hall LJ 51

Introduction:· This piece challenges traditional visions of lawyering through alternative narratives and articulating a new discourse of professionalism based on different principles and ideas. The traditional narrative· We are observing changes to the way we view the role and purpose of lawyering.· For instance, lawyers seeking ways to practice law that will allow them to get home at night and on weekends, see their families, work full or part-time, practice in diverse and 'alternative' settings, and generally pursue a meaningful career in the law rather than necessarily a total like in the law.· We are trying to find ways where the legal profession becomes more personally, politically, ethically, economically and professionally sustainable.· This modern discourse of an ethically sustainable profession challenges the 'time-honoured' centrality of client autonomy and a lawyer's unqualified loyalty to the client's interests.· 'Traditional discourse or narrative' = dominant model believing that lawyers should be 'zealous advocates', 'shock troops', 'hired guns' and 'soldiers of the law'...· The resulting paradox created by the dominant narrative is that, although the stories that continue to be told are becoming less attractive to more people, the stories continue to be told.· For instance, the author says that most students already have a strongly developed sense of allegiance to the institutional history and hegemonic ideology of the practice of law. As such, they are already starting to 'think like a lawyer'. I. Legal Ethics and Professionalism· When thinking about the subset of ethics that we call legal ethics, the starting point for the inquiry is to think about how one should live in the context of law, or more specifically, how lawyers ought to act in the context of the profession.· The term 'legal ethics' is typically used interchangeably with the term 'professionalism' or 'professional responsibility' II. Dominant Model of Professionalism· In a nutshell, the basic defining elements of this narrative are that the lawyer's job is to advance zealously the client's cause with all legal means; to be personally neutral vis à vis the result of the client's cause; and to leave the ultimate ethical, personal, economic, and social bases for the decision to proceed in the hands of the client.· Based on this view, lawyers should reject non legal factors such as morality, religion, power, etc and be guided only by what the law allows, thereby viewing themselves purely as legal agents for their clients. A. Principle

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· The animating principle behind the dominant position - consistent with enlightenment notions of individual autonomy and freedom- is one that champions a client's freedom to arrange her affairs within the bounds of the law.· This principles comes from the narrative that clients deserve the best defense and representation possible, especially when they are against the power of the state in a criminal law context B. Policy· These principles for the dominant narrative have been embodied in many sources of policy, including various codes of professional conduct· The rules recognize the importance of the lawyer's ability to raise arguments that, while legal, may not be popular (or moral).· The dominant model requires the lawyer to suppress his or her own views in favour of those of the client and to 'refrain from expressing the lawyer's personal opinions on the merits of the case. C. Practice· The dominant model is not something in theory, it also continues to the dominant model in practice D. Literature, popular culture, and media· We also see the realities of the legal practice playing themselves out in the ways that lawyers are portrayed in literature, film, popular culture, and the media.· The media also regularly highlight the ethical challenges of lawyers as well as normalize and romanticize the role of the zealous advocate = BASICALLY THE STORYLINE OF SUITS. E. Hegemony Light· If the client's interests were truly all that mattered, the job of lawyering would be relatively straightforward. However, it is not the case since no matter how zealous, you cannot engage in illegal activity by obstructing justice or duties related to being an 'officer of the court'

III. Alternative Models of Professionalism · The point of departure from the dominant model is the opportunity or obligation on lawyers to be guided by extra legal norms, such as morality, religion, politics and custom, when representing their clients.A. Principle· Starting point comes from the foundational premise that lawyers, as self-regulated professionals, have been given the opportunity and responsibility to act not just in the interests of their clients by, more fundamentally, in furtherance of the 'public interest'· Therefore they have to take in consideration a number of other factors and interests

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· In the extreme form, lawyer should 'avoid doing harm' by refusing to act if the lawyer thinks that the outcome of 'winning' would be on balance a 'bad thing' or 'socially unfortunate,' in spite of the fact that 'the client will pay'· This alternative model relies on sense of individual morality B. Policy· There are also many policy statements that support this alternative model· For instance, the LSUC has a 'duty' to 'maintain and advance the cause of justice and the rule of law' , 'facilitate access to justice' and 'protect the public interest'· Often lawyers are left to their own moral devices to understand these provisions and their application to particular courses of action (thus creating contested devices, understandings, and applications)· By separating (based on the policy based statements) what amounts to 'legal' and 'ethical', clearly the LSUC contemplates professionalism as an advisory exercise that involves more than simply the consideration of client conduct that is 'legal'· It is difficult to harmonize these code based tools with the policy based tools used by the dominant model and found in the very same codes C. Practice· 'We' cannot escape our own moral framework, moral choices are made by lawyers throughout the project of law D. Competing Professionalisms· 1. There is an argument of tradition in the dominant model. This model is persuasive, because the model has been persuasive for a long time.· 2. The dominant model continues its hegemonic prominence because it is simply more compelling. This model champions its amoral ability to be applied to all lawyers and all lawyering situations (one size fits all)· 3. The model's continued hegemony stems from the politics and economics of the lawyering process. Law has increasingly become a competitive business driven by complex needs of powerful clients.· 4. The most persuasive reason for the continued prominence of the dominant model is due to the weakness of the alternatie models, in terms of the 'moral perspective', 'moral lawyering' or the 'good lawyer' IV. Sustainable Professionalism· We must first examine the underlying interests. A. Underlying Interests· For the dominant model = the client remains the ultimate interest· For alternative visions = some version of 'justice' or the 'public interest' is the primary interest at stake.· The primary points of disagreement between these approaches are the number of relevant stakeholders and the relevance of a lawyer's own moral opinions. B. Sustainability

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· Author attempts to look at the competing models of professionalism through a 'sustainable' lens.· A useful lens of sustainability must take into account a broad range of competing interest: client interest, lawyer interests, ethical and professional interests, and the public interests. 1. Client Interests· The dominant model protects and fosters meaningful space for the interests of clients, particularly powerful and wealthy clients, typically to the exclusion of all others.· In the alternative mode, lawyers will not foist their own values on the client, nor will they work with clients in ways that offend their own moral convictions. This will allow the lawyer-client relationship to be mutually respectful and engaged. 2. Lawyer Interests· There are numerous demands of the lawyering role that engage several self interested notions of professionalism.· Lawyers want to get paid for the services they provide.· Therefore, the sustainable notion of professionalism must take into account the ability of lawyers to make a fair living.· Also, non-financial interests will also play a prominent role in this notion of sustainability 3. Ethical and professional interests (of lawyers and the profession)· The principles and polities that animate the alternative models provide numerous robust bases for requiring that ethical and processional considerations be a meaningful part of a sustainable vision of professionalism· For instance, principles based on equality in the legal profession, a greater understanding and openness to diversity among lawyers, celebrating a multiplicity of voices,... 4. Public interest· A notion of sustainable professionalism must maintain meaningful room for protection of public interest, and in particular a robust and aspirational principle- and policy based statements that animate the alternative models of professionalism in the spirit of protecting the public interest.· Commentators also advocate a theory of professionalism that makes meaningful space for 'avoiding to doing harm' with their 'lawyer skills'· A sustainable professionalism must not proceed on an assumption of full access to justice, rather we must start at the problematic level of today's access realities and develop a theory of professionalism that seeks to be creative and successful vis à cis the bar's obligation to 'facilitate access to justice' C.Balance and Context· The dominant model, through its narrow focus primarily on one interest 'in all the world' misses a variety of other relevant people an interests. The alternative model, on the other hand - through its typical focus on the 'good lawyer' = has seen to be unrealistic in practice.

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· Failing to develop 'bridges' between the 'professional role' and the 'dictates of a personal morality' will 'impoverish both professional and personal pursuits'· However some conflict are irreconcilable (when legal demands of a client are directly opposed to a lawyer's own personal moral code)· The dominant and alternative models have not been able to find common ground on these sorts of questions.· In the end, this model of sustainable professionalism does a better job of being 'normatively sound', being 'descriptively accurate', and providing the premise 'for broad-based buy-in from as many justice-seeking stakeholders as possible' D. Legal Education :(· It is at the initial stage of the professional experience that a sensibility of openness to alternative discourses is most palpable, possible and important. Conclusion· By moving away from a client-centered discussion and toward a discussion that takes seriously a plurality of voices and preferences, including but not exclusively those of the client, we will find many more takers for this theory of sustainable professionalism as a viable discourse for the practice of law.

See: Model Code of Professional Conduct: 2.1-1, 2.1-2

CLASS 4 – Hot Topics 1: Access to Justice

Cotter’s definition: knowledge (want to know what their rights are, procedural info, etc), resources, and services- people wanting to access justice don’t always need the same thingAccess means being able to actually access the resources- are they available? Justice is about equality- is everyone treated the same in legal proceedings?

· Access to justice- assumptions (Cotter) – problem often framed as there are individuals in society who can’t exercise their rights because they can’t afford a lawyer (Accessing the justice system is important and to access the justice system effectively, individuals need legal counsel. BUT lawyers are not accessible to everyone)

Practically, what brings people to need to access justice? -Housing issues, employment issues, divorce, will, immigration, people being

victimized by police, debt, personal injury, medical treatment, → research shows 12 million Canadians will face issues needing access to justice within a 3 year period!! = gap between need and resources able to access -think about what the needs of public are

Barriers to access to justice:

● The cost of justice is very high ( Average hourly salary of lawyer assermente (called to the bar) in 2015 in QC- 208$, Average rate of lawyer called to the bar in 2006 in ON: 383$ (the longer you’re a member of the legal profession, the higher your rate is)

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● the average person doesn’t think about their problems in terms of legal categories- this is an issue for access to justice- don’t have privilege of legal education to see the legal issues all around them

o How will people even know they have an issue?o Legal health check-up- online resource where fill out survey – a

tool from ON legal clinic to help people identify their legal needs = proactive approach rather than reactive (sometimes offering pro bono is too late because if people don’t know their rights, they will do things that will hurt their legal cause down the line)

● There is no right to access legal services, according to the SCCo Christie case – challenging tax imposed on legal services that

disproportionately affected people with low income- court transformed question not about const of the tax, but about whether there is const protected right to access legal services through a lawyer- BUT in other contexts court has recognized such a right- court not willing to go that far to recognize right to access justice

- Model code- aspirational provision- 4.1-1 – lawyer must make legal services available to the public by any means- but pro bono duties are really just aspirational

Solutions to the access to justice problem:● Mandatory pro bono (can be seen as controlling- like forcing to donate

part of your salary to charity, can be difficult to envision for some types of law- ex mergers and acquisition- should you be doing family law on the side because there’s need? Who do we impose this on? What about lawyers who already volunteer their time in their community ex: working with kids etc, doesn’t address root of the problem )

● Openness to alternative types of dispute resolution- letting other professionals into the fold and looking at alternate structures – ex ON has regulated paralegals- have their own special status under Law Society – understanding in other fields that needs can be met by other people which promotes access to services (Ex pharmacists can prescribe certain medications)

● More legal education in public education- should there be a mandatory law class in high school?

● lowering legal education tuition fees -could mean new lawyers would have less crushing student debt and would be better able to choose career path that promotes access to justice

● Legal aid- in QC the threshold is very low- have to be working less than full time to qualify (even if only making minimum wage) AND it doesn’t cover everything- legal aid in ON does not cover wills – reviewing legal aid thresholds could help

● Simplifying legal processes (so many complicated steps! Can be overwhelming)

● Going beyond the legal framework- is law always the solution? May not always get you the results you want- can be intimidating and seem like a threat- legal problems often intertwined with social problems- in negligence matters there’s a movement towards the apology (this is what people want most- acknowledge that did a wrong and apologize)

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Why are we talking about this in legal ethics and professionalism?There’s a crisis and the consequences will fall on lawyers. Everyone expects lawyers to solve the problem; maybe it’s the bar or govt who should take responsibility, but what can we do as individuals? Keep in mind there are a lot of self-represented litigants due to issues w/ access to justice- poses problems for the system and individual lawyers

A final twist:

We looked at a study which pushes back against idea of cost legal services being too high as the issue – what if access to justice crisis goes beyond that? -study says income has little to do w/ decision to hire a lawyer- more a function of the NATURE of the dispute- some legal issues will attract the need to consult a lawyer more often- what do people actually want? Knowledge? Resources? Services? Some self-represented litigants are by CHOICE- because they want to take it on, not because they can’t afford itBrent Cotter, “Thoughts on a Coordinated and Comprehensive Approach to Access to Justice in Canada” (2012) 63 UNBLJ 54.

Definition of Access to justice- In general terms, members of our society would have appropriate access to

civil and family justice if they had the knowledge, resources and services to deal effectively with civil and family legal matters

Five assumptions about the fundamental nature of the access to justice problem

1. Justice and Access to Justice are fundamental to how citizens live their lives in a respectful society governed by the rule of law

2. Law of access to justice undermines our society and confidence in its fairness/justness – thereby undermining confidence in the RoL

3. Ensuring access to justice gets harder every day4. Everyone has responsibility to contribute to the solutions to the

problem, even if that contribution need be uncomfortable5. Each actor associated with law is given opportunity/trust in relation

to the justice system. Have obligation to preserve and strengthen access to justice

Suggests reform in law schools- Forcing students to take certain courses and donate time to community

organizationsReforms for lawyer profession

- Each lawyer required to donate time to a pro bono program- Redesign in the way legal services are delivered

Reforms for the judiciary - Simplification of court processes- Accepting of dispute resolution processes that are less focused on legal

framework of the dispute and more focused on addressing the interests of the parties (use judges less and dispute resolution professionals more)

- Judges must be cautious in awarding government-funded representation in individual cases

- Reconsider the role of the judgeRole of governments

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- Greater financial support for access to justice- Commit to drafting laws and procedures in clear, simple and understandable

language (simplicity and precision)- Implement “policy screens” to test if proposed policy impedes access to

justice

Beverley McLachlin, “Accès à la justice et marginalisation: l’aspect humain de l’accès à la justice” (2016) 57:2 C de D 341

In this speech, McLachlin, CJ lays out her view of what “access to justice” means, and suggests how it can be improved in Canada. She begins with the basic components of access to justice. She divides them into two categories: systemic and human.

Systemic Requirements- The basic systemic requirements are as follows:- Courts must be open to all, and thus affordable. They must also be efficient.

(342)This means that they cannot discriminate as who may access courts, and in doing so must offer access to juridical services and legal advice such that ordinary people can bring their cases. Finally, they must be efficient, offering real and timely solutions to the issues brought forth in a just and practical manner. (342-343)

Human Requirements- While systemic requirements are priorities because they are the bare

minimum necessary for access to justice, but courts and the justice system as a whole must also consider their role from the perspective of the people using the system- the human aspect. (343)

- System actors should ask themselves: “Has this particular person, who is using the system and/or who will bear its effects, obtained the services they need? Have they gotten justice?”

Answering this question requires a global vision, one that recognizes low levels of literacy, lack of knowledge and information (especially about procedure), linguistic obstacles, and financial and intellectual handicaps. (344)Beyond questions of procedure, true access to justice requires knowing something about the system and its actors.

Understanding the System and Its Actors- More and more people represent themselves (pro se). When this happens,

the burden of assuring a basic comprehension of procedures falls upon the judge and, in certain cases, the opposing party. This reality may trouble the adversarial nature of of debate before the court, but the alternative is a denial of access to justice. (344)

- There is insufficient access to legal aid and juridical advice in Canada. Pro bono services help remedy this problem and the problems presented by self-representation, but it isn't enough. (345)

Understanding the Person

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- Jurisdictions like New York State and California allow students with legal training and paralegals to advice and even represent clients (respectively) in certain circumstances. (346) A key point is that, from the point of view of the public, or those consumers of justice, the issue is access to justice, no access to a lawyer.

- With this in mind, alternative dispute mechanisms and technology can be useful, but bearing in mind financial and intellectual disabilities as well as low technological literacy, these should be available but not imposed. (346)

Cultural competency means judges have a role to play in understanding the background of the people involved (example of some members of indigenous groups who do not look others in the eye out of respect interpreted as lying by courts).

People expect an impartial judge. In this sense, neutrality is not the same as impartiality. The more judges are aware of different points of view, the less they are susceptible to understand situations from only one point of view (which can happen with a neutral judge, but would not be impartial). (348)

Finally, recognizing the reality of the justice system means being sensitive to the social circumstances affecting people involved with the law. In practice, this means being aware of mental illness and addiction and/or combinations of these factors among the people appearing before courts. The system can take cues from Ontario where social services are often offered in the same place as legal services/courthouses. (349)

In the end, justice is not a luxury, it is an integral part of democracy and everyone has a fundamental right to it. It is a basic social good, like nourishment, shelter, and medical care. (349)

CLASS 5 – Hot Topics 2: Diversity and the Legal Profession

Topics for reflection and discussion: How does the profession address issues of diversity (or a lack thereof)? What impact can issues relating to diversity have with regard to legal ethics

and professionalism?

Polling Exercises: The first Black lawyer was admitted to the Ontario bar in 1855 The first female lawyer was admitted to the Ontario bar in 1897

o The first woman barrister in Canada and British Empire (Martin) In Quebec, the first woman was admitted to the Quebec bar in 1942 (McGill

Law graduate) o Quebec was the last province to admit women into the practice of law

The first indigenous lawyer was admitted to QC bar in 1938 The first lawyer of Asian descent to be admitted in Canadian bar was 1945

o Made 3 attempts to gain admittance into Osgoode Hall Law School (existence of underlying discrimination)

The first edition of the Ontario Rules of Professional Conduct was published in 1833

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o Quebec 1868

Why did we answer these questions? In order to understand that for some, access to the legal profession has only

been something recent That there is underlying discrimination at the roots of the legal profession That understanding history is important to comprehending our legal system

today We can’t discuss legal ethics if we cannot come to terms with what our legal

tradition is That the profession has always been about exclusion Our conception of what it means to be an ethical lawyer varies according to

the time we live in Our legal ethics discourse is very much grounded in a European, Anglo-

Saxon, Protestant vision of lawyer.o Catholics, even, used to be barred from being lawyers

The legal profession today: Diverse Practices In Canada, no distinction between barrister and solicitor like in other places

(such as Ontario or the UK) Not much place given to Indigenous legal traditions in our concepts of

professionalism o When we look at the Model Code, the emphasis is on the client o In indigenous legal theories, communities play a much greater role,

individualism is very much an Enlightenment idea. Legal profession is very fragmented – variety of practices – we’re all doing

different things o We all have very different conceptions of what it means to be a lawyer o Is it about being aggressive, robotic and convincing a panel of

imposing jurists? Or about being collegiate or friendly? o Fragmentation in legal practice – when we talk about diversity – we’re

also talking about diversity of practiceo Some of us might never look at the Civil Code, the Constitution or the

Criminal Code again o People divide themselves into groups based on what they want to do o Should the people who do business law, maritime law and elder law

etc. – have one set of rules?

The legal profession today: Diverse people Racialized lawyers and lawyers who are women have different opportunities

and don’t earn the same as white men Women are at much greater risk of leaving profession in first 5 years

Règlement de la Cour supérieure du Québec en matière civile (s.35)Port de la toge. Au tribunal, l’avocat porte soit une toge noire avec veston noir, pantalon foncé et chemise, col et rabat blancs, soit une toge noire fermée devant, à encolure relevée, manches longues et rabat blanc. L’avocate porte toge noire et rabat blanc avec robe noire à manches longues ou jupe ou pantalon foncé et

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chemisier blanc à manches longues./Le stagiaire porte soit une toge noire avec complet foncé, chemise blanche et cravate foncée, soit une toge noire fermée devant, à encolure relevée et manches longues. La stagiaire porte toge noire avec jupe ou pantalon foncé et chemisier blanc à manches longues ou vêtements foncés./Toutefois, le port de la toge n’est pas requis durant les mois de juillet et août ni en chambre de pratique civile. L’avocat ou le stagiaire porte alors pantalon, veston, chemise et cravate sobres, et l’avocate ou la stagiaire porte jupe ou pantalon avec chemisier et veston, robe ou costume-tailleur sobre.”

Differentiates amongst gender Comes from a time of certain values where association with gender was

strong What looks like a regular procedural rule has an impact in terms of diversity

and sends a message re: who is welcome

Practical Group Exercise Why aren’t women speaking in court room? In the classroom? Greater

systemic issue of why women aren’t speaking

When equality clashes with other rights Free speech

o Trinity Western University o Clash of rights between equality and freedom of religion

Constance Backhouse, “Gender and Race in the Construction of “Legal Professionalism” in Adam Dodek and Alice Woolley, eds., In Search of the Ethical Lawyer (Vancouver: UBC Press, 2016).

- Roots of the profession grounded in discrimination and inequality. Even though membership is becoming more diverse, we’re not successfully dealing with gender, class, race, sexual orientation, able-bodied presumptions that were part of the profession at its root. Making small changes at the edge of the procession isn’t going to get rid of these discriminatory privileges.

The Notion of Professionalism- Historically linked to masculinity, whiteness, class privilege, Protestantism.- In its formative years, the LSUC weeded out “ungentlemanly” people by testing on classics, which was basically only available to rich anglo-Canadians.

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- In the 19th century, lawyers who became members were generally homogenous. The idea of professionalism was a close community with shared culture/traditions/expectations.

Differential Treatment Accorded to Path Breakers- First Black lawyer, Delos Rogest Davis, had trouble finding someone who

would take him on to do his articling. So he had to petition the Ontario legislature for admission, and convinced them to admit him through special statute. He was admitted to the bar between 1885-6. Other Black and Jewish law students who followed Davis also had trouble finding articling positions, generally ended up working for other Black or Jewish lawyers.

- First woman lawyer, Brett Martin. She was white and had class privilege. She met a lot of resistance, and the law society deemed her ineligible. A lot of legal commenters agreed that women couldn’t be lawyers. So, she did the same thing as Davis, and petitioned the Ontario legislature to require lawyers to admit women. She was met with a lot of opposition there as well, but eventually obtained admission . She had less trouble finding articling positions, but everyone working around her made it unpleasant.

- The barriers that early Aboriginal faced were even more difficult to deal with. Andrew Paul: had his application denied by the Law Society because he couldn’t speak Latin and wasn’t eligible to vote in the province. p The first Aboriginal lawyer (Norman Lickers) was called to the bar in 1938, was disbarred in 1950.

- Disbarment was an issue for a lot of early racialized lawyers.Further harassment of Path Breakers

- Even if you got into the bar, had mistreatment from white male lawyers in the practice.- Justice Bertha Wilson:

o First woman appointed to Ontario Court of Appeal in 1976, to Supreme Court in 1982. Met with a lot of exclusion and hostility from the other judges (i.e. asking that be replaced on complex cases, ignoring her).

o She was isolated from informal decision making discussions between the male judges, which limited her ability to influence the Court.

o Professional norms of civility and collegiality were used to protect the masculine judicial circle, and to isolate/exclude the first woman on the bench.

- Justice L’Heureux-Dube:o First woman appointed to the QC court of appeal, second to the

Supreme Court.o Subjected to a lot of disrespectful comments by other judges and

lawyers (attacked for her “feminist bias” and “radical feminist judgement,” accused of promoting her own agenda when she articulated the egalitarian principles that applied to assessing consent in sexual assault law in Ewanchuk).

o Given that these types of harsh comments about male judges are hardly ever publicly circulated, but were circulated in her case further emphasizes the way that professionalism/civility/community/collegiality did not extend to a female judge perceived as a feminist.

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- Justice Corinne Sparkso Black judges also experienced attacks. This judge was challenged

for acquitting a Black male teenager of assaulting and white police officer, saying that the officer had probably overreacted, as they were known to do when dealing with non-white groups. Majority of the supreme court disapproved of these “worrisome” comments (even though they found that there was no reasonable apprehension of bias).

- Climate within law schools contributes to the problem. Female law profs in the 70’s, 8-‘s and 90’s noted a “chilly climate: in Canadian law schools that impeded them from doing their jobs (trivialization and harassment from male professors, administrators and students). . White male dominance was evident even at the foundations of legal training.

Consequences of a Masculine, White, Privileged Profession- Cost to those excluded, in terms of career opportunities, economic benefits, and social status (138).- But also: a lack of diversification in the name of preserving professionalism has negative consequences in terms of the services offered to the public, arguments made in courtrooms, and judge decisions.- Communities that have been underrepresented in the profession had had less access to legal rights and lawyers who can represent them.

o This is particularly evident in Aboriginal communities. Records show lots of inept lawyering on behalf of Aboriginal clients.

o Aboriginal peoples contested the rights of Euro-Canadians to assert jurisdiction in criminal, civil and property law, but their voices were unheard. When they were represented by white lawyers, these white lawyers didn’t understand the complex Aboriginal political and justice systems that had been operating before contact.

o So, basic questions of sovereignty were not properly considered.o As a result, Aboriginal communities were denied basic legal rights

and were left with many outstanding questions.- Also, lots of incidents of lawyers making racist, sexist arguments in court (for example, in cases of sexual assault, and in a case about a Chinese Canadian restaurant owner).- Having lawyers that come from privileged white backgrounds also affects how they understand the world when they become judges (for example, a male judge who ruled in favor of a man who beat his wife, which resulted in wife battering being considered a legitimate thing in Canadian law for a while.

The future of Legal Professionalism- Should turn away from words that have so much of this baggage attached to them (like collegiality, professionalism, etc). We need major structural changes. These things are more important to deal with than professionalism and civility.

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Barreau du Québec, « Pour une profession inclusive – La diversité ethnoculturelle dans la profession juridique » (2014).

• Information gathering "Forum Project" focused on: Largest consultation exercise held in Qc for lawyers and students from racialized groups• Getting into the profession: Studying law, articling, and having equivalent

qualifications recognized (for those educated outside Quebec) • Starting practice: Finding employment, establishing a practice, and developing a

clientele • Advancing in the field: professional development • Two major findings:  

a. the ethno-cultural diversity of the legal profession in Quebec is not fully congruent with that of the rest of society: While 13% of the population identities with one of the “visible minority” groups in the national census, only 6% of lawyers do. b. Several years of observation have given rise to concerns about the integration of lawyers from racialized groups: They are overrepresented in solo practice, less frequently employed by large terms, and often specialize in immigration law. 

• Main barriers to more diversity: a. Prejudices and stereotypes b. Blatant discrimination and racist incidents c. Language, accent, family name, appearance, and cultural codes d. Scarcity of networks, role models and mentors e. Meritocracy f. Mandatory articling g. Issues specific to lawyers educated outside of Quebec 

• Solutions suggested:   a. Disseminate and discuss the report b. Promote and encourage contributions from racialized lawyers c. Provide useful tools for the practice of law and career management d. Solutions regarding mentoring, networking and placement assistance e. Develop initiative between Barreau and interested in-house counsel and law firms f. Improve the system for assessing credential equivalencies and the development of a plan to integrate lawyers educated outside Quebec g. Indicator development- barreau updated to provide indicators of development

CLASS 6 – Hot Topics 3: Technology and Mental Health

Technology:· Technology is changing the way we study law; much more information available online than in the past· The profession today:

o More technology = more access to justice?o Pervasiveness of technology

§ New ways of communicating§ Ethical issues related to technology in practice

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· Quebec professional norms for lawyers require that they have a computer and email address Contemporary issues in technology and law - Class exercise and discussion about relevant provisions from the Model Code

o Friending clients on social media§ 2.1-1 – Integrity§ Blurring the line between professional and personal life§ 3.3-1 – confidential information

· Identity of client can or cannot be public – is it ok if lawyer’s social network knows that client is their client?

o Border searches of lawyer’s technology§ 3.2-7 – Dishonest, fraud by client or others

· Sometimes lawyer have things to hide so it seems unfair that lawyers would be exempt from searches compared to regular people

§ 5.1-2a – lawyer must not abuse the process of the court by bringing proceedings that are motivated by a client’s malice§ 3.5-1 – Preservation of client’s property

o Using social media for investigative purposes§ Preamble – establishes basic principles of integrity§ 6.3-4 and 6.3-4 – Harassment and discrimination§ 5.5-1 – Relations with jurors - Juror communications before trial

· Problem of using fake accounts to follow clients/jurors and using it against them· Public social media accounts is admissible and can be used as evidence in lawsuits

o Legal outsourcing§ 7.6-1 – Preventing unauthorized practice of law§ 3.3-1 – Confidentiality§ 3.1-2 - Competence

o Cloud computing§ 3.5-2 – Preservation of client’s property§ 3.3-1 - Confidentiality

o Using social media to build your lawyer brand§ 5.6-1 – Comment 3 – Public confidence and administration of justice§ Issue with lawyers posting stuff online

· Definition of client: having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf· Must keep in mind when building your brand on social media: are we inadvertently building a lawyer-client relationship à must include disclaimer that you are not providing legal advice

o Online only lawyer-client relationships§ 3.2-1 – Quality of service – providing prompt service

o Metadata§ 3.3-1 – Confidentiality

o Artificial intelligence

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§ Preventing unauthorized practice§ Confidentiality§ 6.1-1 – Delegation and supervision

· How do we deal with this technology and supervise ito Online reviews of lawyers

§ 4.2-1 – marketing of professional services

Mental health and the legal profession● Lawyers more likely to be depressed, drink, abuse drugs, commit suicide● Realities of practice

○ Culture of endurance and wokaholism○ Human effects of the adversarial process○ Law as a business – billable hours (penalize efficiency)○ Lack of control inherent in legal profession à client dictates work and

timelines○ Materialism○ Unrealistic expectations

■ California IP lawyer who secretly became a drug addict and died from OD

■ Lawyers have responsibility to be aware of mental health issues around them

Richard E Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: Oxford University Press, 2013) (chapters 5 and 11).

Disruptive Technologies: fundamentally challenge functioning of a firm or sector Can unseat market leaders Sometimes providers are late to recognize potential of technologies and don't

manage to regain ground 13 key disruptive technologies in law

Automated documents E.g. template providers, document assembly systems, production of loan

documents Relentless connectivity

Systems prevent lawyers from entirely disengaging with work: internet, phones, messaging, email etc

Clients and colleagues expect to have immediate access to lawyers Electronic legal marketplace

People share views on performance/service of lawyers, price comparison, online legal auctions possible

E-learning Online lectures, simulated legal practice= changes to methods of law schools

for more focussed, practice-oriented trainingOnline legal guidance

Legal info and even advice available on the internet: threatens brick-and-mortar law firms who make living from face to face interaction

Legal open sourcing Public legal materials eg documents, checklist, flow charts that help people do

legal work that once was chargeable as part of lawyers' service

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Closed legal communities Shared info between lawyers in an area of practice to build up body of

knowledge Workflow and project management

Project management systems make case management easier and also reduce fees lawyers are able to charge

Embedded legal knowledge Legal rules embedded in systems and processes, e.g. cars that warn drivers

that ignition won't work until breathalysing test is passed o The law is embedded= lawyers not needed to advise clients to

circumstances of legal significance  Online dispute resolution

Availability of e-negotiation, e-mediation Intelligent legal search

Emerging systems to review large batches of documents are more efficient than junior lawyers + much less costly

Big data Better search tools to harness big data's value e.g. through aggregating

relevant data AI Based systems

AI legal reasoning and problem-solving improving New jobs for lawyers

Expert trusted lawyero Always room for the trusted legal advisor with expertise in specific areas

+ who provides bespoke service Enhanced practitioner

o Basically the expert trusted lawyer's minion Legal knowledge engineer

o Works toward developing and organizing legal knowledge in the new computer systems

Legal technologistso Bridge the gap between law and technology (have experience in both

professions) Legal hybrids

o Multidisciplinary lawyers Legal process analysts

o Analyze the legal work at issue and apportion the assignment to the relevant supplier of services for each piece of work

Legal project managero Oversees and supervises the performance of pieces of legal work

conducted by suppliers Legal ODR practitioner

o Rise in online dispute resolution= new careers for e-negotiators and e-mediators

Legal management consultant o Growing need for guidance re: team-building, strategy formulation,

introduction of IT in the workplace. Corresponding increase in demand for in-house management consulting.

Legal risk manager

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Need to develop processes, techniques, systems to help clients identify, assess, hedge, control risks that confront them.

Deborah L Rhode, “The Conditions of Practice” in Deborah L. Rhode, The Trouble with Lawyers ? (Oxford: Oxford University press, 2015). Lawyer: from a profession to a business. Conditions:Size: increase in scale and size of the practice.· Of size of firms, in number of lawyers, in number of graduates (which is larger than number of jobs available [in field of high-pay law])Competition: decisions that have reduce anti-competition constraints + size/availability

· Technology also replacing some legal work· Competition inside firms (Stealing work, clients, compensation structures)

Priority of Profit:· Short term profit at the expense of other values· = more partner movement, crazier schedules & less securityBillable Hours:· have gone way up in the last 20 years· technology = always reachable = personal life is lost/no division· billable hours: amount of time spent rather than quality of work/efficiency of use· all would benefit from saner schedules but no one is willing to take that risk

Satisfaction with Practice:· direct questions about job satisfaction are hard to access, results often skewed twds satisfaction· many would not recommend or would not do it again· much higher substance abuses and depression rates, high levels of fatigue and stress· “dissatisfaction rates are highest among the ones with highest credentials” (15)· women and minorities most dissatisfied (but also the happiest with decision)Sources of Satisfaction· people who become lawyers are generally less happy people as a character (17)· success = balance between: happiness, achievement, significance, legacyCauses of Dissatisfaction· view of law does not match its reality (clamour vs paper work)· lack of connection with the social good (19)· long hours and inflexible schedules are rewarded. Pro bono is not.· Overwork = stress, abuse, depression, mental health issues

Misplaced priorities· Circular = no room/incentive for reform (reality creates reality)· Success at work ($, partner, win, etc) does not necessarily = happiness· Satisfaction is wanting what you have. Otherwise = hedonist cycle

Money

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· = less satisfaction that people think· higher pay does not = higher satisfaction/happiness (relationships do)· get more $ = expensive lifestyle = feel they need to maintain it = long hours

Rationale for reform· happy = perform better and live longer/healthier· better hours, pro bono, etc pay off for the firm and the individual

Strategies for reform: belief that change is possible· informed, self-reflection about career choices· ask and demand control = firms will respondInstitutional Strategies· employers need to address the source of discontent, offer support, see incentive· mentoring, relationships with partners· clients: ask for better schedules to get better quality.· Bar and courts need to support diversity, pro bono and reformLegal Education· Part of the problem and solution (need to accept that)· Same mental health and abuse symptoms amongst law students as lawyers· Address realities of practice at school· Input of researchers, who are not part of general lawyer practice and its reality.

CLASS 7 – Hot Topics 4: The Adversarial System and the Civility Issue

Mental Health· The increase in technology is creating “relentless connectivity”· Why talk about mental health in Ethics?

o 1. Break the stigma!o 2. She wants to educate us about the challenges of practicing law· Statistics

o 120 demandes en 1996, 1 157 en 2016 (Programme d'aide aux membres du Barreau du Québec)o Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person (John Hopkins)o 21 % of lawyers qualify as problem drinkers (American Bar Association)

· The realities of practiceo Culture of endurance and workaholismo The human effects of the adversarial processo Law as a business: la “course aux heures”o Lack of controlo Materialismo Unrealistic expectations

· Civilityo Civility is politeness + courtesy + practice that favours the efficiency of the justice system

§ Generally, civility is:· Respect for others; curtailing one’s own immediate self-interest when appropriate

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· Code of decency to be applied in everyday lifeo In the legal profession

§ Nadeau/Denis Masse: “approach that seeks to diminish rancour, to reconcile, to be open to non-litigious resolution. In short, it is an approach that modifies the antagonisms and aggressiveness of an adversarial society and seeks a more civilized condition”§ Wooley: The manner in which counsel communicate with each other (politeness/courtesy). Conduct essential to ensuring the proper functioning of the judicial process

o Civility as a movement in the legal professiono Issues with regulating civility

§ Duties to clients; The Model code states that there is a duty to raise every argument no matter “how distasteful”§ Freedom of expression

o Components of civility§ There is no one way to describe civility; it is a vague concept (Groia)§ Being respectful to others; being on time, prepared, not interrupting others§ Encouraging and allowing others to talk§ Écouter les autres§ Willingness to seek, listen and learn from other’s feedback§ Self-restraint§ Having a positive approach to working with others§ Offering solutions when voicing complaints§ Learning from errors§ Being respectful with technologyo Representations of lawyers in the media tend to be high-intensity and uncivil§ Clients have ideas that lawyers are aggressive, might think their counsel isn’t fighting for them enough§ These are often idealized types

o Issue of costs: at the end of the trial, it is rare, but possible to award costs to the lawyer personally – judges can do this in egregious circumstances to discipline lawyerso Groia

§ Background· In 1993 clients “find gold” in Borneo, but this is a scam· Ontario securities commission investigates; go after one of the company’s executives· Groia is the lawyer; trial begins in 2000· Very long trial – 7 years; exec of the company is acquitted· At one point, the Ontario Securities Commission applies to have the judge removed; they say that because the judge did not remove Groia, the judge has lost control of the trial (the judge ends up continuing to oversee the trial)· In 2009, LSCU decides to file disciplinary complaint against Groia following the trial due to incivility

§ The proceedings

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· 1. LSUC Hearing Panel: say he is guilty of incivility and professional misconduct· 2. LSUC Appeal Panel: upheld the conviction for different reasons· 3. Ontario Divisional Court: upheld the decision of the appeal panel· 4. Ontario Court of Appeal: split decision 2-1

§ Two principles of ethics that are in conflict in Groia· The duty of courtesy and civility v the duty of resolute advocacy· Para 139: “the advocate's duty of zealous advocacy will be tempered by the overriding duty to adhere to all the standards of the profession, including the duty to act with courtesy and civility and in good faith. This case affords an apt example. An advocate's duty to his or her client does not permit the advocate to act unprofessionally.”

§ What provisions of the Model Code are associated with these principles?· 5.1-1, 5.1-5, 7.2-1§ According to the Ontario Court of Appeal, the Law Society does have the power to police lawyer conduct in the courtroom§ The advocate’s duty of zealous advocacy will be tempered by the overriding duty to adhere to all the standards of the profession§ Various tests for civility· The LSUC Appeal Panel: “It is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.”· The Ontario Court of Appeal: “Any inquiry into whether a barrister's in-court conduct amounts to professional misconduct takes into account three main factors: (i) What the barrister did; (ii) What the presiding judge did about the barrister's conduct and how the barrister responded to the directions of the presiding judge; and (iii) What effect the conduct complained of had on the fairness of the in-court proceeding, including the ability of the opposing side to present its case.”§ The trial is going to the SCC on Nov 6, 2017· One of the issues: Can the law society police the conduct of lawyers in the courtroom – even though no one complained to the law society?· Another issue: what is the correct test? Appeal Panel of the LSUC has one test, the Divisional Court had another, the Ontario Court of Appeal went back to the Appeal Panel’s test, but the dissent created a new test

o The SCC will look at which should be correcto Doré

§ In Doré, the SCC defined incivility as: Potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy

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Brigitte Nadeau et Corinne Denis Masse, “La civilité dans la pratique de l’avocat” dans L’avocat dans la cité: éthique et professionnalisme (Montréal : Les Éditions Thémis: 2012) 133.

Civilité : principes généraux● Il existe un véritable « mouvement favorisant la civilité » (e.g. USCJ Burger).

De plus en plus de plaintes reliées à la civilité. L’incivilité fait partie de la culture et de la perception de la profession.

● « L’obligation de civilité implique l’obligation classique de courtoisie et de politesse et celle, beaucoup plus large, d’avoir une pratique du droit favorisant l’efficacité du système juridique. »E.g. courtoisie et politesse : retourner les appels, vider sa boîte vocale, ne pas critiquer ses confrères et consœurs.E.g. efficacité du système : accéder aux demandes raisonnables du représentant de l’autre partie lorsqu’aucun préjudice n’est engendré pour le client, ne pas être excessif dans les motions présentées.

Au Québec● L’obligation de civilité n’est pas explicitement énoncée dans la législation

professionnelle. 2.00.01 du Code de déontologie des avocats prévoit une obligation de courtoisie, qui varie selon la situation. Il y a également une obligation de participation à un système de justice efficace et expéditif (2.01.01 et 2.05).

● L’obligation de civilité dans le cadre professionnel découle de ces obligations connexes.

Comment se traduit-elle en pratique?La courtoisie● Dans les communications. Langage poli, ne pas être injurieux ou

blasphématoire, modération dans ses propos. Plus problématique en litige (démontrer son désaccord tout en étant respectueux). S’applique également aux écrits (nouvelles technologies rendent la communication plus rapide, ce qui entraîne plus de risques de manque de modération).

● Dans les relations avec les différents acteurs du système. Pas de commentaires désobligeants à l’égard du représentant de l’autre partie, envers le personnel, etc.

● Dans les actions. Ponctualité, être prêt lorsque le procès commence, avertir le client sur le modus operandi du tribunal.

Le respect envers l’administration de la justice● Le respect envers le Tribunal. Honnêteté (conséquences sont immenses).● La civilité dans les relations avec les confrères. Rapports exempts

d'ambiguïté, rapidité dans les retours d’appels et dans les correspondances, pas de menaces, pas d’attaques personnelles, ne pas profiter de l’erreur de la partie adverse (souplesse).

Conséquences d’un manque de civilité● Sanctions disciplinaires. Réprimande, radiation, amende de 1000$ à 12500$,

forcé de communiquer une information, révocation du permis, limites au droit d’exercer des activités professionnelles.

○ Barreau c Lemoyne. Propos intimidants envers la plaignante. Radiation de 22 mois et remboursement de frais.

○ Barreau c Roy. Propos vulgaires envers un policier. Radiation de 30 jours.

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○ Barreau c Labarge. Propos inconvenants envers un collègue. Radiation de 2 ans.

● Conséquences en salle de Cour. Influence sur la décision de condamner une partie au paiement de sommes d’argent (dépens).

● Poursuite en diffamation.● Atteinte à la crédibilité.Arguments en faveur de la civilité dans la pratique● Qualité de l’environnement de travail. Impact sur l’environnement dans

lequel l’avocat œuvre.● L’obligation de loyauté envers le client. La civilité sert le client. Des

procédures excessivement longues coûtent cher au client. « Civility in a courtroom is not a sign of weakness. »

● La stratégie.● L’obligation de soutien envers l’administration de la justice. Obligation

d’être efficace.● L’opinion publique de la profession. « Civility and professionalism form a

framework for common expectations for mutual trust ».Arguments questionnant l’importance de la civilité● Liberté d’expression.● L’obligation de loyauté envers le client. Devoir de compétence, obligations

de loyauté, d’intégrité, d’indépendance, de désintéressement, de diligence et de prudence.

● L’obligation de soutien envers l’administration de la justice. La civilité ne devrait pas l’emporter sur le devoir de représentation de l’avocat et celui de participer à l’administration de la justice avec efficacité. L’avocat est un officier de justice.

● L’excellence de la profession. E.g. de Ruth Bader Ginsburg, l’incivilité de Scalia la pousse à être plus ardente dans son travail juridique.

● Les obligations déontologiques. Les conseils disciplinaires devraient-ils faire la police de la civilité des avocats? Les obligations déontologiques sont définies de façon très vaste; il serait peut-être souhaitable d’avoir des obligations déontologiques plus spécifiques pour adresser les problématiques liées à l’incivilité.

Conclusion● La décision d’agir avec civilité est davantage une décision éthique.

Groia v Law Society of Upper Canada , 2016 ONCA 471 (excerpts).

LSUC charges Groia with violating s. 33 of the Law Society Act (1990) by engaging in professional misconduct

Facts: In mid-1990s, stock in Bre-X skyrocketed on reports of a major gold find in

Indonesia. Joseph Felderhof (F) of Bre-X is charged in 1999 by OSC with 8 counts under Securities Act, including fraud, linked to crash of company. F retains Groia (G) as his lawyer. Trial spans 7 years and 160 days of court time; exceptionally acrimonious trial, bombastic defense by G included constant contestation of admissibility of evidence, allegations of bad faith by OSC and prosecutors. Throughout the trial he was reprimanded by the trial judge and admonished by the court of appeal, but never found to have

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conducted himself in a way that amounted to interfering with trial fairness. F is acquitted of all charges in 2007.

By 2010, the LSUC starts disciplinary proceedings against G (of his own initiative), inquiting into alleged professional misconduct. Tension is that Prosecutorial Misconduct allegations were rejected by the bench, and Law Society is now conducting its own (re)investigation into the subtly distinct issue of “professional misconduct”and whether his conduct undermined the integrity of the profession.

PH: LSUC finds misconduct that amounts to incivility and bad fiath. Appeal panel of LSUC addirms decision, but reduces penalty. Divisional court holds that appeal panel’s decision was procedurally sound (“reasonable”); G appeals to CoA.Issues:

Was action LSUC Appeal Panel’s decision reasonable and procedurally sound? [yes, on split decision]

(Would ruling have a chilling effect on defense counsel, and the court system at large’s ability to provide defendants with zealous advocates)? [no])

Reasoning: Reasonableness is the proper standard of review for a court reviewing a law

society’s discipline decision. The Divisional Court erred by substituting its own test for that of the Appeal Panel.

Rejects Groia’s argument that trial judges should have the primary (possibly the sole) responsibility for managing courtroom conduct. The bench and Law Societies play different but related and complementary roles, with similarly complementary powers. The Law Society’s jurisdiction over in-court conduct clearly flows from its enabling statute.

Zealous advocacy is important, but does not override a lawyer’s duty to the justice system as a whole and to the profesion. Court agrees with the LSUC’s assessment of G’s conduct as uncivil and in bad faith; stresses that the inquiry undertaken by the LSUC is different from that of the bench.

G’s Freedom of expression is to be reasonably balanced against professional obligations of the lawyer. This reasonable balancing was properly undertaken by Law Society.

The test formulated the by the LSUC was fine – not too vague.

Note that majority upholds the Appeal Panel’s test, namely that it is professional misconduct for a lawyer:

To make allegations: of prosecutorial misconduct, or that impugn the integrity of opposing counsel,

Unless the allegations are made: in good faith, and with a reasonable basis.]

Memorable: “[C]ourtrooms are not just places where advocates and judges come to work. They are the community’s chosen forum for public dispute resolution and the administration of the criminal law.” (para 212)

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Doré v Barreau du Québec , 2012 SCC 12 (excerpts).

FactsJudge of the Superior Court criticized D, a lawyer, both at the hearing and in his written reasons, for his bombastic style, idle quibbling, impudent demeanor and poor service to his client. D responds with a private letter to the judge with various insults; namely, he calls him loathsome, arrogant and fundamentally unjust.The Assistant Syndic of the Barreau du Québec filed a complaint against D, alleging that D had violated art. 2.03 of the Code of ethics of advocates, which states that the conduct of advocates “must bear the stamp of objectivity, moderation and dignity”. The Disciplinary Council of the Barreau du Québec found that the letter was likely to offend, rude and insulting, that the statements had little expressive value, and that the judge’s conduct, which resulted in a reprimand from the Canadian Judicial Council, could not be relied on as justification for it. The Council reprimanded D and suspended his ability to practice law for 21 days; it found that the Code’s limiting of expression was justified. D appealed to the Tribunal des professions, arguing that the sanction itself violated his freedom of expression.

Past HistoryThe Tribunal found that D had exceeded the objectivity, moderation and dignity expected of him and that the decision to sanction D only minimally restricted his freedom of expression. On judicial review, the Superior Court upheld the Tribunal’s decision.CoA applied full Oakes analysis and still upheld the reprimand.

IssueDoes the suspension infringe D’s Charter-protected freedom of expression? (Read: What is the appropriate standard of review for discretionary decisions involving Charter issues?)

HoldingNo it does not. (Standard is reasonableness). Disciplinary Council appropriately balanced D’s expressive rights and the objectives of the Code of Ethics.

ReasoningAdministrative Law Framework

The question here is whether the presence of a Charter issue calls for the replacement of the administrative law framework with the Oakes test analysis, the test traditionally used to determine whether the state has justified a law’s violation of the Charter as a “reasonable limit” under s. 1.

There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness” (Dunsmuir). But when reviewing whether administrative decision-makers has taken sufficient

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account of Charter values in exercising her discretion, ask: has the decision-maker disproportionately, therefore unreasonably, limited a Charter right?

Admin decision-makers have expertise and specialization, familiarity with competing considerations in given fact scenario and are thus in the best position to weigh considerations.

Core of review is to ask: in assessing the impact of the relevant Charter protection, given the nature of the decision and the statutory and factual contexts, does the decision reflect a proportionate balancing of the Charter rights and values at play?

o Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate a “margin of appreciation” (deference) to administrative and legislative bodies who balance Charter values against broader objectives.

o If a decision disproportionately impairs a Charter guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one.

Application: Did the Council’s reprimand of D reflect a proportionate balancing of D’s expressive rights against its statutory mandate to ensure that lawyers behave with “objectivity, moderation and dignity” in accordance with art. 2.03 of the Code of ethics?

It does automatically flow from criticizing a judge or the judicial system that a lawyer should be reprimanded. Such criticism can be constructive. But in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism.

In light of the letter’s excessive vituperation, the Council’s decision to reprimand represents a proportional balancing of D’s expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation and dignity”. The decision is, as a result, a reasonable one.

RatioIn assessing whether admin. decision-makers have exercised discretion in accordance with Charter protections, judicial review should accord with an administrative law approach, but not a s. 1 Oakes analysis. The standard of review is reasonableness.

See : Model Code of Professional Conduct: 2.1-1, 2.1-2, 3.2-4, 3.2-5, 5.1, 5.6-1, 7.2

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UNIT II: LEGAL ETHICS AND PROFESSIONALISM 101

CLASS 8 - The Formation of the Lawyer-Client Relationship

Advertising: 4.2 Model Code4.2-1 A lawyer may market professional services, provided that the marketing is: (a) demonstrably true, accurate and verifiable; (b) neither misleading, confusing or deceptive, nor likely to mislead, confuse or deceive; (c) in the best interests of the public and consistent with a high standard of professionalism. Commentary [1] Examples of marketing that may contravene this rule include: (a) stating an amount of money that the lawyer has recovered for a client or referring to the lawyer’s degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases;

(b) suggesting qualitative superiority to other lawyers; (c) raising expectations unjustifiably; (d) suggesting or implying the lawyer is aggressive; (e) disparaging or demeaning other persons, groups, organizations or institutions; (f) taking advantage of a vulnerable person or group; and (g) using testimonials or endorsements that contain emotional appeals. 4.2-2 A lawyer may advertise fees charged for their services provided that: (a) the advertising is reasonably precise as to the services offered for each fee quoted; (b) the advertising states whether other amounts, such as disbursements and taxes, will be charged in addition to the fee; and (c) the lawyer strictly adheres to the advertised fee in every applicable case. 

Little discipline on advertising, there are mostly compliance checks 

How to you deal with awards? Not much in the model code, but these are provisions coming out dealing with this issue

Can the firm to put these awards on their campaign? Are these awards actually true?

Choosing your client:

1.1-1 Model Code: definition of client - “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. - and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work

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4.1-1 Model Code Note: commentary 4: right to decline representation, but must be exercised

prudently.4.1-1 A lawyer must make legal services available to the public efficiently and conveniently and, subject to rule 4.1-2, may offer legal services to a prospective client by any means.

Commentary [1] A lawyer may assist in making legal services available by participating in the Legal Aid Plan and lawyer referral services and by engaging in programs of public information, education or advice concerning legal matters. [2] As a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide services pro bono and to reduce or waive a fee when there is hardship or poverty or the client or prospective client would otherwise be deprived of adequate legal advice or representation. The Law Society encourages lawyers to provide public interest legal services and to support organizations that provide services to persons of limited means. [3] A lawyer who knows or has reasonable grounds to believe that a client is entitled to Legal Aid should advise the client of the right to apply for Legal Aid, unless the circumstances indicate that the client has waived or does not need such assistance. [4] Right to Decline Representation - A lawyer has a general right to decline a particular representation (except when assigned as counsel by a tribunal), but it is a right to be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation. Generally, a lawyer should not exercise the right merely because a person seeking legal services or that person's cause is unpopular or notorious, or because powerful interests or allegations of misconduct or malfeasance are involved, or because of the lawyer's private opinion about the guilt of the accused. A lawyer declining representation should assist in obtaining the services of another lawyer qualified in the particular field and able to act. When a lawyer offers assistance to a client or prospective client in finding another lawyer, the assistance should be given willingly and, except where a referral fee is permitted by section 3.6-6, without charge.

Consensus that cannot take a client if Conflict of interest Issue of competence Potential to be a witness in the case Illegal purpose

6.3 Model Code Harassment and Discrimination

6.3-1 The principles of human rights laws and related case law apply to the interpretation of this rule.

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6.3-2 A term used in this rule that is defined in human rights legislation has the same meaning as in the legislation.

6.3-3 A lawyer must not sexually harass any person.

6.3-4 A lawyer must not engage in any other form of harassment of any person.

6.3-5 A lawyer must not discriminate against any person.

Commentary [1] A lawyer has a special responsibility to respect the requirements of human rights laws in force in Canada, its provinces and territories and, specifically, to honour the obligations enumerated in human rights laws.

If you don't think you are able to take on this matter, you should not take it. Issue: this provision has tension with criminal lawyers

Radio-Canada, Enquête , “The Ambulance Chaser who came to Lac-Mégantic” (2017)

● Key word: “ambulance chasers” or “case runners” are people, generally lawyers who try to pick up clients right after a major tragedy. In other words, they are people who find victims of tragedies, sign their case to their law firm, and then sell their cases to other law firms in exchange for commission from that law firm.

○ Clients are usually in their worst state of mind as they are their most vulnerable and therefore they are likely to sign with these lawyers

■ Ambulance chasers look at these victims of tragedy as money as they pray on people human emotions for financial gain

○ This practice is called “barraty” in the US and is illegal - unsure if this practices is illegal in QC

Video:● 2013, The Lac-Megantic railroad tragedy = 40+ died when 74 freight trains

carrying crude oil crashed and exploded○ The magnitude and devastation of the tragedy caught international

attention■ American lawyers flooded QC to see if they could sign victim

families to their law firm and launch individual or class action lawsuits against the railroad companies

○ The cause of the accident was unclear - 30 companies were involved● Willie Garcia, a Texan man who is the head partner of a Garcia law firm,

was one of the first people of the scene of the tragedy○ He is not a lawyer; his daughter is a lawyer but Garcia is the brains

behind the operation■ The daughter did very little legal work

○ He has a reputation of working under the radar and taking advantage of accident victims

○ 40/47 victims families signed with the Garcia law group → he was a very persuasive and insistent negotiator

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■ Garcia referred all of these clients to other law firms and planned to get huge cuts from commission once a settlement packaged was confirmed

■ Garcia did very little follow up after the cases were outsourced to other law firms

○ The settlement package for the victims was $114 million dollars■ Garcia’s law firm received approximately $15 million from

commissions○ Where Willie effed up: Willie signed the legal contracts between his

firm and the clients. He cannot do this as he is a not a lawyer, which makes the client- lawyer contract void.

■ Victims could sue him for misrepresentation and nullity of K■ If the daughter would have signed the K then that would have

been fine○ Garcias has since gone under the radar again

● The law surrounding this matter:

○ A lawyer is allowed to refer a case to another lawyer but only in certain circumstances where the second lawyer has special expertise on the subject matter of the case

■ The lawyer has to follow up on the case and not just abandon the case to the second lawyer

○ “Ambulance chasing” is illegal in Texas■ Unsure of whether this is illegal in QC as there is little guidance

about this in the documentary○ QC law:

■ The QC bar association did very little to help regulate against this type “ambulance chasing” practice and gave very little support to the victims of this practice

Allan C Hutchinson, “Taking it Personally: Legal Ethics and Client Selection” (1998) 1:2 Legal Ethics 168.

Client selection is one of the most important, yet neglected by many, issues for lawyers. Once a lawyer takes on a client, he/she is subject to a whole array of ethical and moral obligations. Although legal services should be made available to everyone, there are no prohibitions on lawyers refusing to represent particular clients. Some jurisdictions have declared that refusing a client on the basis of race, gender etc is not permissible.2 major ethical issues: 1) is there an obligation to take on cases that are unpopular? -NO; And is it ever professionally responsible to refuse certain cases? – YES, lawyers are not ethically or morally compromised by the moral [un]worthiness of their clients’ causes.Some argue that lawyers should accepts all clients because 1) it would otherwise deprive people of their legal rights; 2) lawyers can’t determine the merits of the case at the outset;According to Duncan Kennedy, lawyers should only represent clients or causes that they are prepared to defend as being more rather than less beneficial for society.

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See: Model Code of Professional Conduct: 1.1-1 (definition of “client”); 3.6-1; chapter 4; 6.3.

CLASSES 9-10 - Conflicts of interest

What to look to when determining if there’s a conflict of interest?1. Neil: definiton/test within of conflict of interest2. Model Code

a. 3.4-1: Is there a “substantial risk” of the representation being “materially and adversely affected”?

b. 3.4-1, commentary 2: Must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer

c. 3.4-1, commentary 11(d): Such a relationship may conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client

i. Financial interest, friendshipd. 5.2-1, commentary 1: “The lawyer who is a necessary witness should

testify and entrust the conduct of the case to another lawyer”

New client vs old client conflictsConfidential information from formet client = information is relevant to current retainer with new client = CONFLICT

Question to ask:1. Did they receive confidential information?2. Is there a risk that the information can be used in the new retainer because it is related to the previous confidential information?Court of Appeal case in Nova ScotiaIf representation will have the effect of undermining or attacking the legal work done by the former client, that’s a problem. Taking an adversarial position against the former client in a manner that’s central to the previous retainer.OR…a lawyer may not act for the new client if the representation would have the effect of attacking or undermining the legal work done for the former client by the lawyer (e.g. the matter is the same or related to the matter on which the lawyer was formally retained)Strother case: lawyer had relationship with client and turned around and did something nefarious to the clientUndermining the justice system and administration of justiceDon’t want to undermine benefit that former client has received3.4-10 Model CodeWhen does something qualify as confidential information?When is information not “relevant"? “From a reasonable client’s perspective, what was the matter on which [missing the remaining]”

Bright Line Rule:A lawyer cannot concurrently represent two clients, even in unrelated matters, where the legal interest of one clients are directly adverse to the immediate interests of another client -> looking at “legal interest” of clients

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Presumption in a law firm that confidential information can be shared

Questions to ask selfIs the conflict between Current clients?

a. Concurrently representing two or more clients in unrelated matters

b. Two or more clients are in an actual dispute with each otherc. Two or more current clients have interest in a mater or related

matter that conflict (3.4-4 and following Model Code)

Former clients?

My interests and those of the client’s? Go to the specific test when there is one→ General definition of conflict of interest in Model code and

jurisprudence→ Confidentiality: MacDonald Estate → Court in Neil makes it broader→ Do not assume facts that are not there

An example where legal interests do not conflict: economic interests.

Pure economic interests are not a violation of the Bright Line Rule - the only concern is confidential information, since we don’t want confidential information to be used against one another

example: law firm bidding to get both Bell Canada and Desjardins as clients (unclear?)

Threshold In addition, the onus falls upon the client to establish, on

a balance of probabilities, the existence of a conflict

Informed consent● Provide information about all matters likely to be relent to evaluating the

conflic (including the reasonably foreseeable ways that could adversely affect the client’s interests)

○ Must take reasonable steps to ensure client understands

○ Must be voluntary○ In writing is preferable

MacDonald Estate v. Martin [1990] 3 R.C.S. (SCC)

Facts: ● The appellant’s (MDE) lawyer was assisted by a junior firm member who was

actively engaged in the case and privy to confidential information; the junior

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lawyer eventually left to join the law firm which represents the defendants (M)

PH: ● Appellant applied to the provincial court for a declaration that the firm was

ineligible to continue to act as solicitors of record for the respondent; the court granted the application

● The court of appeal reversed the decision

Issues: 1. What is the appropriate standard to apply in deciding whether a law firm

should be disqualified from acting in litigation because of a conflict of interest?

2. Specifically, should the defendants’ law firm be removed as solicitors of record?

Holding: Yes, the defendants’ law firm should be removed as solicitors.

Analysis (Sopinka J.): ● In determining whether a conflict of interest is disqualifying, the court is

concerned with: 1. Maintaining the high standards of the legal profession and the

integrity of the justice system 2. The countervailing value that a litigant should not be deprived of his

or her choice of counsel without good cause 3. The desirability to promote reasonable mobility in the legal profession

● The traditional English test is the “probability of mischief” standard, but the court says it’s not high enough to satisfy the requirement that there be a public appearance of justice

● Outlines a new test for the “reasonably informed person to be sure that no use of confidential information would occur:

1. Did the lawyer receive confidential info attributable to a solicitor and client relationship relevant to the matter at hand?

a. Americans answer this using the “substantial relationship test” - once it is established that there’s a substantial relationship between the matter out of which the confidential info arose and the matter at hand, there is an irrebuttable presumption that confidential info was imparted to the lawyer

b. Sopinka says this test is too rigid - says that once the client shows that there was previous relationship sufficiently related to the retainer from which they want to remove the solicitor, the court should infer that confidential info was imparted UNLESS the solicitor can show the court that no relevant info was imparted

2. Is there a risk that it will be used to the prejudice of the client? a. A lawyer who has relevant confidential info is automatically

disqualified from acting against a client or former client b. The court should draw the inference that lawyers who work

together share confidences (it’s very hard, even with affidavits, to prove that they didn’t)

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● In this case, the lawyer actively worked on the case for her new firm which went against her former client and is therefore in possession of confidential information.

Wilson, L’Heureux-Dubé and Cory JJ: ● There is an irrebuttable presumption that confidential information disclosed

to a lawyer has become the knowledge of their new firm ○ This is essential to preserve public confidence in the administration of

justice ● “It is fundamentally important that justice not only be done, but appear to be

done in the eyes of the public”

Ratio: Lawyers can’t join new firms and work against their own clients.

R v. Neil [2002] 2002 SCC 70

Facts: ● Neil claims that a member of a law firm with which he had an ongoing

relationship as a client provided the police with information that led to the laying of further charges against him

● The law firm (through a lawyer, Lazin) also took on one of Neil’s alleged victims (Doblanko, for whom he forged court documents) at the same time as they were representing N in a different case re: defrauding Canada Trust for mortgages

○ Though the D mandate was unrelated to the CT mandate, it was adverse to the client’s interests

○ The firm also represented N’s biz associate and ex-wife Helen Lambert in divorce proceedings when they know she’d also be charged in CT proceedings

○ Lazin also had Doblanko report the forgery to the same police officer responsible

● Neil is calling for a stay of his conviction

Issue(s): 1. What are the proper limits of a lawyer’s “duty of loyalty” to a current client

in a case where the lawyer did not receive any confidential information relevant to the matter in which they propose to act against the current client?

2. More specifically, is a stay of Neil’s conviction the appropriate remedy?

PH: ● Stay was vacated and verdict restored by the AB Court of appeal, which sent

the matter back to the trial judge for sentencing

Holding: 1. A law firm should not take on the cases of their clients’ alleged victims - the

duty of loyalty was breached in this case. 2. However, a stay of the conviction is not an appropriate remedy. Appeal

dismissed.

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Analysis (Binnie J.): ● A lawyer has a duty of loyalty to his client above all others

○ This is integral to the administration of justice and the public’s confidence in that integrity

○ A litigant has to be assured of his lawyer’s undivided loyalty, otherwise no one will have confidence in the legal system

○ Loyalty promotes effective representation, on which the problem-solving capacity of an adversarial system rests

● Client loyalty is “a price paid for professionalism” - business dev. Strategies must adapt to legal principles rather than the other way around

● Loyalty is the defining characteristic of a fiduciary ○ Fiduciary = 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.

● The aspects of the duty of loyalty relevant to this appels: 1. The duty to avoid conflicting interests 2. A duty of commitment to the client’s cause (zealous representation) 3. A duty of candour with the client on matters relevant to the retainer

Relevant legal principles: 1. Did a solicitor-client relationship exist at the time? YES. 2. The duty of loyalty to an existing client - EXISTS AND IS ENGAGED

a. You need to get consent from both clients in order to proceed b. Only in exceptional cases can the consent of the client be inferred

3. Bright line general rule = 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

Potential remedies for breach of the duty of loyalty 1. Disciplinary action from a law society 2. Action against the lawyer for compensation 3. Action to disqualify the lawyer from acting further 4. A ground to set aside a judgement (more onerous at the appellate level since

it constitute the reversal of a court judgement) a. Must show the conflict of interest b. Must show that the conflict adversely affected the laywer’s

performance on behalf of the appelant - If this test is met, the court can order a new trial

The stay is not an appropriate remedy because a. The falsification of court documents came to light without the involvement of

the law firm b. The firm’s involvement ended with the report to the police; the police

investigated and laid their own charges c. The appellant acknowledged that the confidential info obtained re: CT had

no relevance to D’s case

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d. The lawyers’ violation of duty was not an affront to fair play and decency e. The charges are extremely serious and should not be reversed because of a

law firm’s private conduct

ALSO, the firm realized its breach of duty of loyalty and acted no further on the CT file

Ratio: A breach of loyalty has several remedies, and is not always enough to reverse a verdict.

Strother v. 3464920 Canada Inc 2007 SCC 24

Facts: ● A company, Monarch, developed tax shelter investments whereby Canadian

taxpayers, through ownership of units in a limited, partnership, provide film production services to American studios making films in Canada

● S + the appellant law firm were on retainer for M until the end of 1997; M continued thereafter as a client

● In Nov. 1996, the Minister of Finance announced his intention to amend the ITA to defeat tax shelters + introduced Matchable Expenditures rules

● S told M that there was no fix to avoid the rules; M’s biz winds down ● In late 1997, D approached S to discuss a revised tax-assisted film

production services opportunities — S drafted a proposal for Revenue Canada (and was granted 55% of the first $2mil in profits) — which was approved

● S did not tell M about this approval or the possible revival of their business, but the firm continued to do work for M

● M wrote a memo re: acting simultaneously for M and Sentinel; the managing partner said S could not own any interest in Sentinel (so S left the company)

● Monarch sued S and the firm for breach of fiduciary duty and breach of confidence

PH: ● The trial judge dismissed M’s claim for breach of fiduciary duty ● The Court of Appeal substantially allowed the appeal and ordered S to

account for and disgorge to M all benefits and profits received from S + that the firm disgorge its profits from S

● S + firm appealed; M cross-appealed the dismissal of its claims

Issue(s): 1. Did Strother breach his fiduciary duties to Monarch by working with

Sentinel and failing to disclose relevant into?

Holding: YES. The appeals should be allowed in part and the cross-appeal dismissed.

Analysis (Binnie J) (via CanLII): ● The source of the duty is not just the retainer itself, but all the

circumstances creating a relationship of trust and confidence from which flow obligations of loyalty and transparency.

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● Conflict 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 retainer with Sentinel, was not directly adverse to any immediate interest of Monarch and Strother was free to take it on after the exclusivity agreement had expired at the end of 1997.

● Sentinel had created a business opportunity which Monarch could have sought to exploit.

● There was a conflict because, despite his duty to Monarch, Strother acquired a major personal interest in another client, in circumstances where his prospects of personal profit were enhanced by keeping Monarch in the dark.

● Strother should have sought Monarch’s informed consent. ● Strother should have told Monarch that his previous advice was wrong, even

though he could not reveal the new scheme due to his duty of confidentiality towards Darc’s company.

○ Davis, however, did not know about Strother’s action and did not thus participate in his conflict of interest.

● Monarch seeks ‘disgorgement’ of profits made by Strother and David. Such an remedy either has a prophylactic purpose, or a restitutionary one.

○ We are in a case of prophylactic purpose. The objective is to prevent the fiduciary to make profits from its breach of fiduciary obligations, even at the expense of a windfall to the wronged beneficiary.

McLachlin CJ, dissentingInsistence on actual conflicting duties or interests based on what the lawyer has contracted to do in the retainer is vital. If the duty of loyalty is described as a general, free-floating duty owed by a lawyer or law firm to every client, the potential for conflicts is vast.

● The 1997 retainer having expired, Strother was no longer in the business of advising Monarch in film financing activities – he only advised him in relation to other matters

○ He was then free to start acting for other businesses as he pleased● Whether or not he had an interest in S’s business doesn’t matter; he had

fulfilled his duty of loyalty to Monarch

Ratio: Law firms may act concurrently for different clients in the same line of business when (1) the relationship with the former client is terminated or (2) when the new representation does not put the former client in a vulnerable position (here Strother had a financial interest in the new representation which was enhanced by keeping the former client in the dark).

CN v. McKercher LLP and Gordon Wallace [2013] SCC LLP

Facts: ● McKercher (MK) was acting for CN on three ongoing matters (personal

injury, real estate, and creditor/receivership)

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● At the same time, MK accepted a retainer from Gordon Wallace (GW) against CN in a $1.75 billion class action (MK partners terminated their retainers hastily with CN upon taking on the GW class action)

● CN applied for an order removing MK as solicitor of record in the class action on the grounds that MK had breached its duty of loyalty to CN and that they might misuse confidential information gained in the course of their solicitor-client relationship

PH: ● Motion judge granted the application (CN felt an understandable sense of

betrayal) ● Court of appeal overturned the motion; found that a general understanding

of CN’s litigation strengthens and weaknesses did not constitute relevant confidential info; CN was not in a position of vulnerability; the termination of the relationship put an end to any possibility of prejudice

Issues: 1. Can a law firm accept a retainer to act against a current client on a matter

unrelated to the client’s existing files? I.e. does the bright line rule apply? 2. More specifically, can a firm bring a lawsuit against a current client on

behalf of a client? 3. If not, what remedies are available to the client whose lawyer has brought

suit against it?

Holding: 1. YES, the bright line rule applies to MK. The immediate interests of CN and

Wallace were directly adverse. 2. NO - not without consent, which MK did not obtain from CN.3. Disqualification, unless certain factors mitigate it on the facts.

Analysis (CJ McLaughlin): ● A law firm is under a duty of commitment to a client’s cause (dropping CN’s

retainers breached this) ● A breach of the bright line rule normally attracts the remedy of

disqualification● Role of law societies is to establish regulations for their members (general

rules for good governance of the profession); the role of courts is to resolve issues of conflicts in cases (proper administration of justice)

● NOTE: both the Federation of Law Societies of Canada and Canadian Bar Association were interveners in this cases asking for endorsement to their precise form of the rules

● Goes through history of avoiding conflicts of interest ○ Main concern in English jurisprudence was only concerned with real

harm to the client ○ Martin test >>> a firm can’t be disqualified unless there’s a risk of

prejudice to the client, although in some cases the client benefits from a presumption of risk of prejudice

● Law of conflicts is concerned with 2 types of prejudice: 1. Prej. as a result of a lawyer’s misuse of confidential information

obtained from a clienta. TEST FOR CONFIDENTIAL INFO (see: Martin)

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i. Obtaining the info ii. Will it be used in prejudice of a client

2. Prej. arising where the lawyer “soft-peddles” his representation of a client to serve his own interests or those of another client or 3rd party

● Concurrent representation of clients triggers the bright line rule ○ BLR makes sense because it is clear, and it recognizes that lawyer-

client relationships are based on trust

Scope of the BLR Applies only when:

1. The immediate interests of clients are directly adverse in the matters on which the lawyer is acting

2. Clients are adverse in legal interests 3. NOT WHEN the party who raises it seeks to abuse it 4. NOT WHEN it is unreasonable for a client to expect that its law firm will not

act against it in unrelated matters

● Sometimes it’s unreasonable for a client to expect exclusive loyalty, but that’s the exception and not the norm

○ Case-by-case assessment is necessary

The Substantial Risk Principle ● When a situation falls outside the BLR, the question becomes whether the

concurrent representation of clients creates a substantial risk that the lawyer’s representation of the client would be materially and adversely affected

You breached the BLR if: a. The immediate legal interests of the new client are directly adverse to those

of the existing client b. The existing client has sought to exploit the bright line rule in a tactical

mannerc. The existing client can reasonably expect that the law firm will not act

against it in unrelated matter

● If the BLR is inapplicable, you go to the Substantial Risk Principle

Other dimensions of the duty of loyalty to consider a. The duty of commitment to the Client’s cause

○ You can’t unexpectedly drop a client simply to avoid conflicts of interests

b. The duty of candour ○ You have to disclose any factors relevant to your ability to provide

effective representation○ Duty to advise before accepting a retainer that would create conflicts

of interest

NOTE: Court finds that there is not a risk of misuses of confidential information in this situation

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● However, MK did breach its duty of commitment to CN by terminating its retainer

● Also breached their duty of candour by failing to disclose their intention to accept the Wallace retainer

Remedy ● In assessing whether disqualification is required on this ground alone, all

relevant circumstances should be considered, including: ○ The complaining party’s behaviour (i.e. delay in bringing the motion

to disqualify)○ Prejudice to the new client’s interest and that party’s ability to find

new counsel ○ The fact that the law firm accepted the conflicting retainer in good

faith● Is disqualification required to maintain public confidence in the justice

system?

Ratio: The bright line rule is that a lawyer, and by extension a law firm, may not concurrently represent clients adverse in interest without obtaining their consent—regardless of whether the client matters are related or unrelated.

When the BLR is inapplicable, the question becomes whether the concurrent representation of clients creates “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, former client, or third person” (Neil).

See : Model Code of Professional Conduct: 3.4

CLASS 11 - Competence

Review of practice group exerciseo 3.4-10 Model Code/Macdonald Estate

Did they receive confidential information? YES, you're representing someone in an acquisition, so you will definitely receive confidential information

Is it relevant to the current retainer? YES, you understanding the way the company works, its business plan, etc. in sum its closely related to the new deal

Is there a risk that it will be used to the prejudice of the client? YESo Presumption that lawyers in firms share confidential information

Macdonald Estateo 3.4-11

Consent? NO - Not feasible - hostile take over bid Measures taken? NO - measures must be timely, its been a few

years since the lawyer works on the case potentially sharing information

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o Bright line rule in Neil --> not applicable because you're only representing one client at a time. This only applies to current clients who have a problem at the same time

o Difference between legal and other types on interests. This comes from the bright line rule, so its not relevant since the clients are two current clients

Business/economic interest versus legal Interests Bright line rule says: lawyer can't concurrent represent two

clients, even in unrelated matters, when the legal interest are directly adverse

Legal interest is not to be sued Ex: business - two banks are bidding for a job with bell. You can

build a wall in the firm in this case, because the interests of the banks are purely economic and not legal. The only issue here is confidentiality, so you build a wall.

Read Mckercher for more on this Advice

o Ask yourself - is the conflict between Current clients Former clients My interests and those of my clients?

o Go to the specific test when there is oneo Do not assume facts that are not thereo BUT, relate to the facts that ARE thereo Vocabulary - case, mattero Walls/cones of silence: evolution since Macdonald

Exampleso Dungate v dungate: lawyer acting for his mother in a family law matter

against his father. Court says this isn't okayo Raabe v De Jong: Husband's brother in law represents him in

matrimonial litigation. Court holds that this is not a situation of divided loyalties where his relationship with his wife will interfere with his duties owed to his client

Note that the standard of proof is on t he balance of probabilities  Conflicts between current clients

Concurrently representing two or more clients in unrelated matters Two or more current clients are in an actual dispute with each other Two or more current clients who have interest in a matter or related matters

that conflict (3.4-4 and following Model Code) o Borrowers and lenders, co accuse din criminal trial, vendors and

purchasers Joint representation in the situations above can only occur in limited

circumstances, and clients have to provide informed consent o 3.4-2: lawyer must not represent a client in a matter when there is a

conflict of interest unless there is express or implied consent from all affected clients and the lawyer reasonably believes that he or she is able to represent the client without having a material adverse effect upon the representation of or loyalty to the client or another client.

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“consent” means fully informed and voluntary consent after disclosure o (a)  in writing, provided that, if more than one person consents, each

signs the same or a separate document recording the consent; or

o (b)  orally, provided that each person consenting receives a separate written communication recording the consent as soon as practicable;

Informed consent:o Provide information about all matters likely to be relevant to evaluation

the conflict (including the reasonable foreseeable ways that the conflict could adversely affect the client's interests

o Must take reasonable steps to ensure clients understandso Voluntaryo In writing

Macdonald Estate: A lawyer who have relevant confidential information cannot act against his clients or former clients. In such a case the disqualification is automatic

 COMPETENCE

3.1-2: This rule does not require a standard of perfection 3.2-1: A lawyer has a duty to provide a quality of service at least equal to that

which lawyers generally expect of a competent lawyer in a like situation. An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service. o Lawyers in a big firm in Toronto are compared to other lawyer at large

firm in Toronto, and if you're a solo practitioner in PEI you'll be compared to other solo practitioners in PEI

Options for recourse against lawyerso Malpractice (negligence)

1457o Disciplinary boards of law societies

Pattern of incompetence 3.1-1 “Competent lawyer” means a lawyer who has and applies relevant

knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including: o (a)  knowing general legal principles and procedures and the substantive

law and procedure for the areas of law in which the lawyer practises; o (b)  investigating facts, identifying issues, ascertaining client objectives,

considering possible options and developing and advising the client on appropriate courses of action;

o (c)  implementing as each matter requires, the chosen course of action through the application of appropriate skills, including:

(i)  legal research; (ii)  analysis; (iii)  application of the law to the relevant facts; (iv)  writing and drafting; (v)  negotiation; (vi)  alternative dispute resolution; (vii)  advocacy; and

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(viii)  problem solving; o (d)  communicating at all relevant stages of a matter in a timely and

effective manner; o (e)  performing all functions conscientiously, diligently and in a timely

and cost-effective manner; o (f)  applying intellectual capacity, judgment and deliberation to all

functions; o (g)  complying in letter and spirit with all rules pertaining to the

appropriate professional conduct of lawyers; o (h)  recognizing limitations in one’s ability to handle a matter or some

aspect of it and taking steps accordingly to ensure the client is appropriately served;

o (i)  managing one’s practice effectively; o (j)  pursuing appropriate professional development to maintain and

enhance legal knowledge and skills; and o (k)  otherwise adapting to changing professional requirements,

standards, techniques and practices.  

Scenario 1:o You're a first year associate. A partner comes into the office at 5 and asks

to draft an opinion by 8am which needs to be send urgently to a client at 9. What do you do?

You have an obligation to speak up. What are your reservations? What is there and what isn't? What's complete?

Scenario 2:o Asked to lead a file in an area of law in which you have no knowledge +

this American life podcast This risks when you go into a new area, and consequences for your

client Be honest about limitations Senior lawyers and mentors

This American Life podcast, episode 595 “Deep End of the Pool” (first 36 minutes).

Introduction In the US: You have the right to an attorney, and if you cannot afford one, an

attorney will be provided to you for free The problem with public defenders

o Never adequately funded in many states – this has reached crisis levels, as many public defenders offices say they do not have the money to meet the demand

In some states, the court simply assign a random lawyer to a case where the plaintiff cannot afford an attorney

o Problem: Often these attorneys have no experience at all in the kind of law that they will have to use in the case they’re assigned

Shreveport, Louisiana Facts/Case summary:

o Burglary : A woman woke up to a flashlight in her face, she screamed and the burglars fled. They managed to take 2 TVs, a computer, an

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iPhone. They left behind evidence: a cigarette butt, a crowbar, a black baseball cap. DNA on the hat matched a man named Trastavien Hardy (T).

o Lawyer assigned : T was assigned a random attorney, Jack Bailey (J – a lawyer who specializes in personal injury, medical malpractice). J sent letters of complaint to the the judge and public defenders – these complaints were not successful.

o T has a criminal record, but maintains his innocence re: the burglary. J missed a court date. T requested to fire J, but he couldn’t because there wasn’t a back-up lawyer to represent him. They met in jail nearly 2 months after J was assigned to the case. T has lost his job and had to drop out of school at this point. T alleged he used to sell and trade hats in the past, so the evidence that the prosecution had which tied him to the crime scene was suspect.

o T did not want to go to trial and wanted to take a plea deal (“He was willing to plead guilty to anything as long as he could get out [of jail] in a year.”) J refused to see what the district attorney (DA) was offering in the way of a plea deal. Also, the jurisdiction T is being heard in has a reputation for tough, long sentences – if T went to trial the minimum sentence he would get, given his prior convictions, would be 20 years, potential maximum sentence of life in prison. On the other hand, if he took a plea deal, he could potentially receive a sentence of 5-8 years. J demanded speedy trial. Only then, they received the evidence the state had. DNA test revealed that the black baseball hat had DNA from two people, T and another. DA dropped the charges.

o J refused to leave the courtroom without putting something on the record (very unusual). Made a 10-minute speech for the record: Noted that T is factually innocent and ranked about the scant evidence and the DA office. The DA didn’t comment.

J went to the Louisiana legislature to lobby against this system of assigning lawyers

Relevant details: o When an attorney is assigned to a case, they are expected to absorb

costs (money and time) o Often, assigned attorneys don’t go to court to meet with their clients

From class notes: A system of assigning a random lawyer to a case who might have no experience in this area of law requires nuance: There is risk to the client.

McClenahan v Clarke , [2004] OJ No 287.

Facts: Heather Billes is the granddaughter of one of the co-founders of the Canadian Tire Corporation (the "CTC"), and the daughter of “Fred Billes”. Fred Billes was heavily involved in instructing Mr. Wright, Ms Billes matrimonial lawyer. The parties (Ms Billes and McClenahan, her ex-husband) signed a separation agreement dated July 13, 1994 ("the Separation Agreement"). Shortly after Heather Billes signed it, she advised Colin Wright that she had made a mistake, and that she did not want to accept the deal set out in the Agreement. Colin Wright advised her that it was too late to change her mind

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Heather Billes is suing her former matrimonial lawyer, Colin Wright, and his partner, Harry Clarke, for damages for Mr. Wright's alleged negligence in representing her in the negotiation of a separation agreement with her former husband.Issues: Did Mr. Wright breach his duty of care towards his client Heather Billes? YESReasoning:

➔ In a negligence action, the plaintiff must prove the existence of a duty of care on the part of the defendant, a breach of the standard of care, damages incurred by the plaintiff that were reasonably foreseeable when the breach occurred and a causal connection between the breach and the consequent damages.

➔ There is no issue that Colin Wright owed Heather Billes a duty of care as her lawyer (expected to act as a reasonably competent, prudent and diligent lawyer)

➔ Plaintiff shows that he did not meet that standard of care because of numerous errors and omissions which were sufficiently significant in terms of potential consequences and significantly indicative of a lack of knowledge of basic principles to take Mr. Wright's conduct below what would be expected of the reasonably competent, prudent and diligent lawyer

➔ Mr. Wright did not assign sufficient importance to understanding the emotional or psychological pressures on Heather Billes during the period when the Separation Agreement was being negotiated and then signed regarding:

● Her Relationship with David McClenahan (ex-husband) : He should have made more of an effort than he did to ensure that Heather Billes understood the consequences of the Separation Agreement, and that she was signing the Agreement through an exercise of her own free will, not through fears of reprisals on the part of David McClenahan.

● Her relationship with Fred Billes (her father) : There were several indicators that Fred Billes wielded a lot of power in his relationship with Heather Billes, and that she was correspondingly relatively weak (including financially). More specifically, Mr. Wright should have been concerned about the potential repercussions for Heather Billes if her father did not agree with her signing the Separation Agreement, and if she went ahead and did so. Heather Billes' vulnerability in her relationship with Fred Billes should have made Colin Wright especially careful to isolate Ms. Billes' needs and not to be bowled over by Mr. Billes' desire to control events: he should have isolated his/her needs and make sure she understands the repercussions of either of those.

● Her relationship with Colin Wright (the lawyer) : Although lawyers will naturally feel impatience from time to time with their clients, they must be careful not to pressure a client into signing something as important as a final separation agreement if the client is not ready to sign it. At no time during his evidence did Colin Wright express any understanding of Heather Billes' emotional state following the separation

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Jatrine Bentsi-Enchill, Canadian Bar Association/ L’Association du Barreau canadien :

o Client Communication: Measuring your Cross-Cultural Competence

Cross-cultural communication = vital skill for lawyers to master. CCC = the ability to communicate with individuals from other cultures in a way that minimizes conflict, promotes greater understanding and maximizes ability to establish trust and support through interpretation of non-verbal and verbal clues.· Cultural competence is tied to ability to communicate cross-culturally. Cultural competence is ability to function effectively in the context of cultural difference and the capacity to effectively adapt, accept and interpret culturally relevant behaviour. Cultural competence = lens that can accurately interpret cultural relevant behaviour.

6 stages of the Development Model of Intercultural Sensitivity:· Stage 1 – Denial

o Lawyer in this stage= unaware of cultural difference. Completely insensitive to client’s cultural taboos, expectations, family norms and communication styles. Lawyer = ineffective in establishing trust and good client relations

· Stage 2: Defenceo Lawyer recognizes some cultural difference and view such

differences negatively.o Instead of trying to understand patterns of communication that

differ from own culture, lawyers in this stage mislabel such conduct as wrong, unintelligent, dishonest. Greater the difference, the more negatively it is perceived.

· Stage 3: minimization of differenceo Avoid stereotypes and appreciate differences in language and

culture. However, still view own values as universal and superior, rather than simply a part of own ethnicity and culture

· Stage 4: acceptance of differenceo Acknowledge identifying cultural differences is crucial to

understanding and improving their interactions with individuals from other cultures.

o Awareness of own culture and understanding that although individuals from other cultures communicate differently, they are neither superior nor inferior. Beginning to interpret culture through a culturally unbiased lens.

o Flexibility, adaptability, and open-mindedness are the route to successful cross-cultural lawyering.

· Stage 5: Adaptation to difference:o Lawyers are able to take the perspective of another culture and

operate successfully within that culture. Increased awareness, acceptance and ability to adapt to other cultures makes C-C communication possible.

· Stage 6: Integration of Difference

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o Lawyers have the ability to evaluate another individual’s behaviour in frame of reference of their client, opponent, colleague or staff member. Able to establish rapport and read the verbal and non-verbal cues of an individual from another culture.

Cultural competence is a developmental process that evolves over an extended period through the proper use of competency assessments, training and coaching.

Tips For Improving Cross-Cultural Communication1. Gain Awareness – something may mean something else from someone from another culture2. Take a look at own culture – understand how your culture impacts your perception of others, to be aware of when you are biased.3. Try a little understanding – understand the impact culture plays on client’s values, perspectives and behaviour.4. Listen closely and pay attention5. Suspend judgment as much as possible – approaching people from other cultures in a judgemental way will hinder your ability to gain a clear understanding.6. Be flexible – flexibility, adaptability and open-mindedness are critical to CCC.

Improving cross-cultural communication and cultural competence is a process and a journey so be patient with yourself.

The Law Society of Upper Canada, “Guidelines for Lawyers Acting in Cases Involving Claims of Aboriginal Residential School Abuse” (English) / Barreau du Haut-Canada, « Lignes directrices pour les avocats agissant dans des causes portant sur les pensionnats autochtones » (French)

Overall, these Guidelines serve as a tool to assist lawyers who are acting for claimants in cases involving Indian residential schools. They provide a sense of the key (and sometimes unique) things to be aware of and do to given the nature of the cases and the clients. This is frame within the context of the Rules of Professional conduct including the duty of competence.

· The Guidelines = tool to assist members of LSUC who act for claimants in cases involving Indian residential schools. Guidelines are in keeping with the spirit and letter of the Rules of Professional Conduct (the Rules). In particular rule 1.03(1)(b) recognizes that lawyers have a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights law in force in Ontario.· Lawyer won’t be subject to discipline by the LSUC for a breach of the Guidelines but may be for a breach of Rules of Professional conduct, some of which are referenced in guidelines.· Respect – a key word throughout – means either an acceptance of the importance of the issue referred to or honourable, kind and careful consideration of the person referred to.· Healing – refers to the claimant’s emotional, psychological, physical and spiritual journey towards health and wellness in life, relationships and community.

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General guidelines:· Lawyers should ensure they are competent to act prior to accepting clients in these matters (Rule 2.01 provides a definition of competent lawyer). This includes: “recognizing limitations in one’s ability to handle a matter, or some aspect of it, and taking steps to ensure the client is appropriately served.” Competence also involves “performing all functions conscientiously, diligently, and in a timely and cost-effective manner”· Lawyers in residential schools cases encouraged to ensure that employee assistance programs and counseling are available for law office and staff.· Lawyers should:

o Take into account that any redress provided to claimants may include broader range beyond the monetary.

o Endeavor to understand and respect claimants’ cultural roots, customs and traditions

o Recognize and respect special nature of cases and facilitate their client’s healing process by identifying and referring resources, treatment programs and personal support networks.

o Recognize unique demands of these cases given complex legal issues, emotional nature, additional amount of time required, potential need for crisis management.

o Be utmost sensitive in dealings with claimants. Ensure methods are culturally appropriate and comply with Rule 3.06(2)(c) which prohibits exploitative means in offering legal services to vulnerable persons

o Recognize claimants may require support people to be present throughout various stages of legal retainer, subject to solicitor client privilege.

o Make clear communications regarding lawyer client relationship, legal process, responsibilities of lawyers and fees and disbursements.

o Recognize and respect special communication needs – given language and cultural barriers. Make written communications understandable and in an accessible format

o Be aware of available suicide resources and supports in order to make referrals when crisis intervention is warranted.

See : Model Code of Professional Conduct: 3.1, 3.2, 7.8-1

CLASS 12 - Competence

Cultural Competence:3.1-1: definition of competent lawyer

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H- recognizing limitations in one’s ability to handle a matter or some aspect of it and taking steps accordingly to ensure the client is appropriately served 3.1-2, commentary 5-7[5] A lawyer should not undertake a matter without honestly feeling competent to handle it, or being able to become competent without undue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client. This is an ethical consideration and is distinct from the standard of care that a tribunal would invoke for purposes of determining negligence. [6] A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should:(a) decline to act;(b) obtain the client’s instructions to retain, consult or collaborate with alawyer who is competent for that task; or(c) obtain the client’s consent for the lawyer to become competent without undue delay, risk or expense to the client. [7] A lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts. [10] In addition to opinions on legal questions, a lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, economic, policy or social complications involved in the question or the course the client should choose. In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client. The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice. Cultural and Emotional Competence: Importance of Social ContextCultural competency is generally defined as a combination of attitudes and skills that promote clear and effective communication between individuals from different cultures, but has also been extended to include the provision of services that are appropriate and accessible to a diverse range of clients, as well as work that addresses issues of equality and access to justice. Emotional Intelligence refers to the ability to process emotion-laden information competently and to use it to guide cognitive activities like problem-solving. Dimensions of Cultural Competence (Rose Voyvodic)1) Knowledge: About how differences affect client experiences of the legal process as well as their interactions with lawyers;2) Skills: Through self-monitoring, to identify how assumptions and stereotypes influence your own thinking and behaviour, as well as the thinking and behaviour of others, and to work to lessen the effect of these influences;

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3) Attitude: Awareness of yourself as a cultural being and of the harmful effects of power and privilege; and the willingness and desire to practice competently in the pursuit of justice. To retain from McClenahan:

1. A lawyer should raise concerns with her client if she has concerns regarding2. her state of mind3. When a lawyer receives instructions from someone who is not her client, a

lawyer should take steps to verify that these instructions reflect the true wishes of the client

4. A lawyer should not allow her interpretation of events cloud the advice that she provides to her client

Cultural competence also involves looking at the client’s cultural understanding of the world. This will help the lawyer to better relate to and understand the client. The lawyer can then communicate with the client about differing cultural practices and views to help the client access services shaped by a different cultural context.

CLASS 13 – Confidentiality

Based on 1. Ethical duty of confidentiality/obligation déontologique de confidentialité2. Doctrine of solicitor-client privilege (professional secrecy in Quebec/secret

professionelleRationale: full and frank disclosure complete defence but do clients even know? Ethical duty

3.3-1: 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 [...] o All information: applies no matter what the source of the information is.

E.g.: you meet with your clients doctor, whatever he says about the client is confidential. Doesn't matter if anyone else knows the knowledge/info

o Client: only applies if they are a client. Are we in the presence of a client?

o Acquired in the course of professional relationship: if you learn something outside of the relationship, not confidential

E.g.: if someone at a party tells you something about your client. BUT also, the duty of loyalty=duty of discretion

 Solicitor client privilege

Protects communications (oral and written) between lawyer and client in the context of the solicitor-client relationship

Lawyer is acting in his capacity as legal advisor, communication obtained in a context where the legal advice is sought

Intended to be confidential by the parties Privilege belongs to the client

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Privilege usually ceases to apply whenever a third party becomes aware of the lawyer-client communication (except for inadvertent disclosure)

Privilege= principle of fundamental justice; protected by the Quebec Charter

 Ex: lawyer bills are privilege because it means that you gave legal advice Some distinctions

Confidentiality = ethical principle; Privilege = legal duty Confidentiality = codes of conduct; Privilege = developed by courts Confidentiality = all of the client information acquired in the course of the

professional relationship; Privilege = limited to private communications that take place between lawyer and client where legal advice sought

Confidentiality = continues even if the information comes to be known to others; Privilege = communication of information to third parties can and often does bring to an end the lawyer’s legal duties with respect to the privileged communication

Confidentiality = defining feature of all lawyer-client relationships; Privilege = legal duty primarily associated with law of evidence

 When do privilege and the ethical duty "end"

BOTH the ethical duty and the privilege live beyond the retainer and beyond the death of the client

 Consequences for lawyers of a breach

Civil liability = damages $$ Injunction prohibiting use of information Law society discipline

 Some exceptions3.3-1 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.

Client consent, renunciation, waiver: 3.3-1 (a) Requires by law or by court order of law society: 3.3-1 (b) and (c) Public safety/future harm exceptions:3.3-3, smith jones: "may disclose" Innocence at stake r v McClure (threshold test: not available from any other

source; no other way to raise reasonable doubt; then a two stage test) Common interest: clients in a joint retainer Defending against allegations of misconduct (3.3-4) Lawyer seeking to recover fees:3.3-5 Seeking legal or ethical advice: 3.3-6 Resolving conflicts: 3.3-7

 

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Helpful framework for confidentiality questions per woolley1. Do I have a duty not to disclose?

a. Privileged ? b. Confidential? c. If not – should my duty of loyalty (discretion) stop me from disclosing? d. If information confidential but not privileged: don’t disclose unless legal

requirement or applicable exception; recall Spaulding v Zimmerman e. Examples where no issues: no lawyer-client relationship,

communications criminal in nature, identity of a client (careful with this last one – see 3.3-1, commentary 5)

2. Is there a valid exception to that duty? a. Is the exception one that is permissive or mandatory?b. Is a court or other legal order required prior to disclosure?

Alice Woolley, Understanding Lawyers’ Ethics in Canada , 2nd edition (Toronto: LexisNexis, 2016) chapter 5.

DefinitionPrivilege : Based in the Common Law, also known as solicitor-client privilege. Narrower than the duty of confidentiality.Confidentiality: Ethical duty of the lawyer; absolute obligation to keep their client’s secrets (duty to protect the client’s right to confidentiality)

When do a lawyer have a duty to disclose? The lawyer-client relationship must be established. Court will look at on

client’s intention and perspective to see whether there was a relationship or not. It doesn’t need a formal retainer, a relationship can be more casual, without formality. It includes prospective clients as well.

E.g.: Descôteaux v Mierzwinski: To help someone filling an application to legal aid, even though no consultation took place, the relationship was established.

Confidentiality includes non-legal matters as well (Law Society of Alberta v. Robidoux). This information, however, won’t be privileged.

Legal & Non-legal mattersPrivilege only applies to information that relates to the giving or receiving of legal advice (legal advice seen as a broad concept). Rationale: “The importance of a client being able to make full and frank disclosure to his lawyer, which necessarily requires allowing the client some latitude as to what may or may not be relevant to obtaining that advice.” (Smith v. Jones) The existence of privilege “depends on the nature of the relationship, the

subject matter of the advice and the circumstances in which it is sought and rendered.” (R v Campbell, S.C.R 565)

Miranda v. Richer: Legal fees may fall within privilege. Mentions that not everything arising from lawyer-client rel. is privileged.

R v Cunningham: Fee information is not privileged unless “relevant of the merits of the case or disclosure of such information may cause prejudice to the client.” Is generally protected (post-Cunningham)

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Legal information is not privileged. Trillium Motor World Ltd. V. Cassels Brock & Blackwell LLP (ONSC):

documents related to pre-bills, invoices and media inquiries are considered as “legal advice.”

ConfidentialityConfidentiality applies “without regard to the nature or source of the information or the fact that others may share the knowledge.” (MC 3.3-1) & to any information arising from the lawyer-client relationship.

Criminal Communications Communications that are “criminal” (fraud, money laundering, treason, etc.)

are included in neither privilege or confidentiality. Re: Descôteaux: false financial information form while claiming legal aid was excluded from privilege.

Communications that further a criminal scheme: The jurisprudence is unclear, inconsistent.

Adam Dodek: The SCC did not consider criminal communications outside the criminal law context; he suggests that this exclusion should include activities that are “akin to fraud” (criminal activities but also unlawful, intentional, deceptive activities that are injurious to others.” Woolley agrees.

Link with the Rule of Law (the law should be clear and public): This exclusion should not be too broaden – clients should not be afraid to talk with lawyers regarding something that may be criminal but they are seeking legal advice to make sure they act according to the law.

R v Campbell: The criminal communications exclusion only arises where the “client is knowingly pursuing a criminal purpose and the lawyer is “dupe” or “conspirator” in the furtherance of that purpose.” In these cases, the communication is not privilege nor confidential.

Information coming from a third party Privilege: This information will fall within the litigation privilege “if the third party is an agent with legal authority to act on the client’s behalf, or if the third party “serves as a channel of communication between the client and the solicitor.”Confidentiality: This information is definitely confidential according to MC 3.3-1, commentary 2. See Law Society of Alberta v. Stephenson

Information about Real PropertyPrivilege: Property is not included in privilege “except for property such as memoranda provided to the lawyer for the purpose of obtaining legal advice.”Confidentiality: Ethical duty to maintain the safety and confidentiality of client property (MC 3.5-2, commentary 2)

Third Party Knowledge of Information

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Neither privilege nor confidentiality applies to information that is available on the public domain.Privilege: When a third party becomes aware of the lawyer-client communication, privilege ceases. Knowledge of the information must be intentional, not the result of inadvertent disclosure by the lawyer or client. Limited waiver also does not unitarily cease privilege. Litigation privilege: Often coexist with solicitor-client privilege, but they are not conterminous in space, time or meaning. Can arise prior to the client contacting a lawyer. It exists to allow litigants “to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure. It shields from disclosure any information prepared for the dominant purpose of preparing for litigation. (Blank v Canada (Minister of Justice)) at para. 1.Confidentiality: It doesn’t limit the duty of confidentiality (MC 3.3-1, commentary 2)

Identity of ClientUnder both doctrine, a lawyer may disclose her client’s identity where doing so is necessary for the purposes of representationPrivilege: This information is privileged when the identity and the fact of the representation disclose something material about the client’s legal issues.Confidentiality: This information is in general confidential (MC 3-3.1, commentary 5).

When the Client is and Organization or CorporationBoth duties are owed to the corporation, not the individuals you are dealing with. You may disclose information about an employee to someone higher in the hierarchy since the information stays within the organization.

Absolute Secrecy When the duty not to disclose is established, lawyers owe absolute secrecy

regarding the communications of their clients. Ethical duty: MC 3.3-1, commentary 8 R v. McClure: solicitor-client privilege should be “as absolute as possible.” The duty of absolute secrecy applies also to the lawyer’s staff and colleagues

(Descôteaux v. Mierzwinski) Both duties survive termination of the retainer and the death of the client

Consequences of Breaching the Duty Law suits for privilege information, Law Society discipline for ethical duties Conflicts between morality (duty of candour) and professional duty (Law

Society of British Columbia v. MacAdam): The lawyer must find some way to satisfy both, whether through making representations to court in a particular way, or withdrawing from the representation if necessary.

The Lawyer’s Ability to Disclose the Information

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There is no duty to not disclose the information when there is no lawyer-client relationship, when the communications are criminal and information about the identity of a client, where identity is not in itself revelatory of anything substantive.

However, a judge may assess whether a disclosure is lawful or not according to an ordinary person standard.

When the Information is Confidential but not Privileged Unless there is a legal requirement to do so (rules of court, other legislation or

a court order), the lawyer has an ethical duty to not disclose the information (MC 3.3-1(b)).

Spaulding v. Zimmerman (Minnesota case): tension between professional morality (not disclose) vs ordinary morality (disclose).

Disclosure of Privileged & Confidential Information SCC (Descôteaux v. Mierzwinski): limitation to confidentiality and privilege

must be strictly construed, disclosure must be “absolutely necessary” to the accomplishment of the legislative purpose.

Privilege is a principle of fundamental justice; a s.1 justification will be difficult to establish according to case law.

This information may be disclosed if the client waives the lawyer’s duty of confidentiality and his solicitor-client privilege (MC 3.3-1(a)). Express waiver must be clear; the privilege holder must know “of the existence of the privilege” and must voluntarily demonstrate the intention to waive it, including some appreciation of the consequences attached to that waiver. Similar requirements for confidentiality.

Waiver are often necessary when it is necessary to fulfill other ethical duties of the lawyer, most significantly, not misleading the court or other counsel (MC 5.1-4).

Implied waiver: Exists when it is necessary to make the representation functional (MC 3.3-1 Commentary 9 & 10) or when some act of the client communicates waiver by implication.

Communications may be disclosed when a lawyer is facing disciplinary charges (MC 3.3-1(c); R v Murray). Disclosure must be limited to the relevant communications regarding the charges (the right of response). To allow disclosure without an analysis is, according to Woolley, an undercut to the lawyer-client relationship (para 5-102).

May also be disclosed to obtain legal advice about their conduct of a matter Adam Dodek’s three elements required for this type of waiver to apply: see

para. 5.89 in readings.

When a Lawyer acts for more than 1 client on a joint basis In this situation, there is no duty of confidentiality or privilege between those

clients. The lawyer has a duty to disclose information received from one party to another.

Pritchard v Ontario (Human Rights Commission) (SCC): “Common interests” exception to privilege and as applying to parties who have a “common goal or are seeking a common outcome.”

Adam Dodek: “Joint client privilege”

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“Innocence at stake” Principle “Innocence at stake” Common Law Principle: Disclosure when the accused

may establish his innocence only with information that would otherwise be privileged and non-disclosable (wrongful conviction vs solicitor-client privilege).

Test (from R v McClure): (Threshold): The accused must establish that the information he is seeking in the solicitor-client file is not available from any other source &he is otherwise unable to raise a reasonable doubt as to his guilt. Test: (1) Must prove the existence of a communication (oral or written) that could raise a reasonable doubt as to his guilt. (2) The Trial Judge must look at the file and determine whether there exists a communication that could raise a reasonable doubt to the accused’s guilt.

Disclosure is only made to defence, not the Crown. A lawyer cannot disclose such an information unless someone successfully raise

the principle.

Disclosure to prevent serious, clear and imminent threats to the safety & Physical or “Real evidence” of a crime

Confusion around that duty: it is not clear (what type of threat to public safety triggers the duty) & the duty to disclose in these cases: is it mandatory or permissive.

Smith v Jones (para. 45): The solicitor-client privilege may be set aside when “where the facts raise real concerns that an identifiable individual or group is in imminent (does not necessarily mean immediate) danger of death or serious (serious physical harm or death, serious psychological harm) bodily harm. The facts must be carefully considered to determine whether the three factors or seriousness, clarity, and imminence indicate that the privilege cannot be maintained.”

The Code treat this duty as permissive. If the threat represents a true emergency (e.g. a bomb), the lawyer should

disclose the information without telling the court. However, if the threat is not an emergency, the lawyer should ask the court, ask a colleague or call the Bar.

Lawyers have a qualified duty to disclose physical evidence of a crime – or, more accurately, a duty not to conceal, destroy, or alter “incriminating physical evidence.” (MC 5.1-2A) – See R v Murray

Utilitarianism Arguments FOR confidentiality (from the Courts): Para. 5.153; which is more

persuasive than Frankel’s argument according to Woolley. Arguments against confidentiality: Marvin Frankel argues for a broadening

of the lawyer’s duty to reveal the truth, even when it hurts.

See: Model Code of Professional Conduct: 3.3, 5.1-4, 7.2-10

CLASS 14 – Client Perjury & Terminating Lawyer-Client Relationship

Confidentialité - Cas particuliers• Physical or “real evidence” of a crime

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• Crime/fraud or criminal communicationsPerjury / Parjure – Code criminel131 […] commet un parjure quiconque fait, avec l’intention de tromper, une fausse déclaration après avoir prêté serment ou fait une affirmation solennelle, dans un affidavit, une déclaration solennelle, un témoignage écrit ou verbal devant une personne autorisée par la loi à permettre que cette déclaration soit faite devant elle, en sachant que sa déclaration est fausse.131 […] every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.Model Code / Code type

• 5.1-2 When acting as an advocate, a lawyer must not: […] (b) knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable; […]

• (e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;

• Voir aussi 3.2-7Model Code / Code type

• Disclosure of Error or Omission• 5.1-4 A lawyer who has unknowingly done or failed to do something that, if

done or omitted knowingly, would have been in breach of this rule and who discovers it, must, subject to section 3.3 (Confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

• Commentary• [1] If a client desires that a course be taken that would involve a breach of

this rule, the lawyer must refuse and do everything reasonably possible to prevent it. If that cannot be done, the lawyer should, subject to rule 3.7-1 (Withdrawal from Representation), withdraw or seek leave to do so.

Terminating the lawyer-client relationship• 3.7: A lawyer must not withdraw from representation of a client except for

good cause and on reasonable notice to the client.• Good cause: No capricious or arbitrary grounds!• “Reasonable notice”:• Commentary 2: Do not desert the client at a critical stage of a matter or at a

time when withdrawal would put the client in a position of disadvantage or peril.

• Court, opposing parties and others directly affected should also be notified of the withdrawal

• Clients can terminate whenever they wantWhen would you consider withdrawing?

• Serious loss of confidence between the lawyer and the client: 3.7-2• Non-payment of fees: 3.7-3

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• Specific rules for criminal proceedings: 3.7-4, 3.7-5, 3.7-6When are you obliged to withdraw? 3.7-7

• Discharged by client• Client persists in instructing the lawyer to act contrary to professional ethics• Not competent to continue to handle a matter• Disqualifying conflict of interest (3.4-1)

How to withdraw: you must…• Try to minimize expense for the client• Avoid prejudice to the client• Do all that can reasonably be done to facilitate the orderly transfer of the

matter• to the successor lawyer• Notify the client in writing: see 3.7-9(a) for the requirements• Deliver to the client all papers and property to which the client is entitled• Give the client all relevant information in connection with the case or matter• Account for all funds of the client• Promptly render an account for outstanding fees and disbursements

Final Housekeeping• Practice Group Final Process Evaluation: Short answer to the following

questions:• What strategies has your group adopted to improve the group work process?• Give one specific example of something that the group learned that you

probably would not have learned working alone• DUE: Friday, October 27 at 11:59 p.m.• In Context Speaker Series:• Must attend two sessions; lire les lectures pour vos séances• Same time, same place: 8:35 a.m. to 9:55 a.m., room 100 NCDH• Voir le Google Doc disponible sur myCourses si vous ne vous souvenez plus

des séances auxquelles vous êtes inscrits• Attendance taken – if you arrive significantly late, you will be considered to

not have attended the session• Final tutorial session week of November 14• Optional exam review on Thursday, November 30 – send questions in

advanceRandal N.M. Graham, Legal Ethics: Theories, Cases and Professional Regulation , third edition (Toronto: Emond Montgomery Publications, 2014) excerpts.

Client perjury: s. 131 Criminal Code, making false statement under oathDifferent options a lawyer could take faced with client perjury:

1. If proceeds as usual then in violation of 5.1-2 of Rules of Professional Conduct

2. Conducts examination but only for parts where the client will not commit perjury

3. Refuse to call the client to testify, but this may unduly interfere with client’s right to testify (though client does not have a right to testify falsely)

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4. Steer client away from issue, but would deny client the chance to have a change of heart while on the stand

5. Dissuade client from committing perjury and threaten withdraw if client persists

6. Expose client’s intentions, which is problematic if there is a change of heart

-most academics agree that Dissuade is the logical first step-but in many cases court will not allow lawyer to withdraw, causing a lot of disagreement among scholars-it is never the role of counsel to help client’s break the law-a lot of times the client doesn’t warn lawyer that he/she is going to commit perjury

Re Jenkins and The Queen-duty of counsel owed to the client and duty of counsel owed to the court

may conflict-Rule 401(1) of the LSUC Rules of Professional Conduct recognizes limits

that must be imposed on effective advocacy vs. duty owed to the court -if there is a serious problem and counsel has acted promptly and in good

faith, the application to relinquish oneself as counsel should be granted (albeit reluctantly, even in serious cases that put the two duties in conflict)

R v Cunningham , 2010 SCC 10, [2010] 1 SCR 331

Facts1. Cunningham is a criminal defence lawyer employed by Legal Aid. She

represented an accused who’s been charged with 3 counts of sexual offence against a young child.

2. The preliminary enquiry was set for 26/06/2006. On the 03/05/2006, Legal Aid informed the accused that, due to his failure to update his financial information, his counsel was no longer authorised to represent him. Cunningham promptly brought an application to withdraw as counsel of record, indicating that she would resume her representation if funding is reinstated.

3. The YKTC refused to grant her application to withdraw; the YKSC upheld the decision, but YKCA overturned it, holding that the trial judge had no discretion to refuse withdrawal.

IssueDo courts have the authority in criminal matters to refuse to grant defence counsel’s request to withdraw because the accused has not complied with the financial terms of the retainer?Holding: Yes (unanimous)

Reasoning, Rothstein J.4. Whereas the accused may discharge his legal counsel “at any time and for any

reason” without the court’s interference, counsel does not have such an “unfettered right” due to the fiduciary nature of the solicitor-client relationship and due to the constraints by rules of professional conduct [para 9].

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5. Authorities diverge on whether courts’ jurisdiction to control their own process imposes a further constraint.

a. BCCA & YKCA: “[T]he role of a strong and independent bar and the role of disciplining lawyers is vested in the law societies, not the court”. + The solicitor-client relationship is contractual; a party may, upon non-performance, repudiate the K [para 11].

b. ROC (mostly CAs): Lawyers are also officers of the court; therefore, they have a “duty to attend before a judge when requested and not to walk out on a client in the middle of a trial”, unless they have a limited retainer [para 13]. Two limitations on the court’s discretion:

i. Courts must grant withdrawals when there is a breakdown of the solicitor-client relationship.

ii. Courts may grant withdrawals after considering the different interests at stake (TBD below at #15(b)(ii)).

6. Rothstein J agrees with the second position, enrooting it in courts’ inherent jurisdiction to protect their process. As inherent jurisdiction has been recognised to grant courts the authority to remove counsel to ensure a fair trial, it follow that it allows them to refuse to grant withdrawals [para 18].

a. Ditto for statutory courts because their power is “necessarily implied in the grant of power to function as a court of law” [para 19].

Criminal Matters7. Withdrawal may impact various interests in the case, mainly the accused’s, who

may be prejudiced because (1) the proceedings may not be adjourned for them to find new counsel and, (2) even if they are, the adjournment would prolong stigma and custody awaiting trial [para 22].

8. The respondent argues, however, that granting courts discretion to entertain applications for withdrawal may

a. violate solicitor-client privilege by the disclosure of non-payment of fees or by disclosure of privileged information when discussing the request with the court;

i. Rothstein J distinguishes between the mere disclosure of non-payment of fees and the disclosure of fee information for the purposes of search and seizures, which is presumed to be privileged because it may lead to charges or conviction (see Maranda v Richer, 2003 SCC 67). The first type of disclosure wouldn’t prejudice clients’ interest in most cases and, when it is relevant to the case’s merits, e.g., in some family law cases, privilege prevails [paras 28–31].

ii. Also, Rothstein J states that lawyers and judges are presumed to know the law and their ethical duties, so we shouldn’t consider whether judges’ enquiries may lead lawyers to reveal privileged information [para 34].

b. impact the role of law societies;i. Rothstein J distinguishes between the role of courts (which he

qualifies as “preventative”) and that of law societies (“reactive”) [para 35].

c. lead to conflicts of interest [para 23].

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i. The respondent argues that lawyers may give legal advice which will expedite the process in order to cut counsel’s financial losses at the expense of the accused’s interests.

ii. Again, Rothstein J argues that lawyers’ conduct is presumed to be ethical, as is the case with other situations where their individual interest may conflict with the client’s (e.g., re: an interesting new file requiring immediate attention, vacation plans).

9. Courts should limit their refusal to exceptional situations “where it is necessary to prevent serious harm to the administration of justice” because “access to justice should not fall solely on the shoulders of the criminal bar and, in particular, legal aid lawyers” [para 45].

TestSituation #1 [para 47]10.IF

a. “counsel seeks to withdraw far enough in advance of any scheduled proceedings and

b. an adjournment will not be necessary”11.THEN the court

a. should allow the withdrawal andb. shouldn’t enquire into counsel’s reasons

Situation #2 [paras 48–50]12.IF timing is an issue, THEN the court is entitled to enquire further.13.IF solicitor-client privilege is not engaged, THEN counsel may reveal his

reasons, i.e.,a. ethical reasons;

i. the court must accept counsel’s answer at face value and not enquire further; and

ii. the court must grant withdrawal.b. non-payment of fees;

i. the court must accept counsel’s answer at face value and not enquire further;

ii. the court may grant withdrawal, upon consideration of the following non-exhaustive factors: “

1. whether it is feasible for the accused to represent himself or herself;

2. other means of obtaining representation;3. impact on the accused from delay in proceedings,

particularly if the accused is in custody;4. 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;

5. impact on the Crown and any co-accused;6. impact on complainants, witnesses and jurors;7. fairness to defence counsel, including consideration of the

expected length and complexity of the proceedings;8. the history of the proceedings, e.g. if the accused has

changed lawyers repeatedly.”c. another specific reason, e.g., workload of counsel.

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Application to the Facts: The issue is now moot.

See : Model Code of Professional Conduct: 3.7

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