Regulation of Lawyers - Ethics - CAN

Contents
Regulation of Lawyers ................................................................................................................................... 7

Self - Regulation ........................................................................................................................................ 7
Other Lawyer Regulation .......................................................................................................................... 7
Conflicts of Interest ....................................................................................................................................... 8
General Principles ..................................................................................................................................... 8
The Lawyer’s Duty (From judicial Decisions) ........................................................................................ 8
The Lawyer’s Duty (From Code) ............................................................................................................ 8
What is the concern? ............................................................................................................................ 8
How does the law of conflicts work (enforcement)?............................................................................ 9
Identifying conflicts: The Substantial Risk Test (GENERAL RULE) ......................................................... 9
What is a “substantial risk”? ................................................................................................................. 9
Identifying conflicts: The Bright Line Test ............................................................................................. 9
Identifying conflicts: Protecting confidentiality .................................................................................. 10
Identifying conflicts: Improper advantage taking ............................................................................... 10
Identifying conflicts: Protecting the Administration of Justice ........................................................... 10
Type of conflicts ...................................................................................................................................... 10
Lawyer-Client Conflicts ........................................................................................................................... 11
Code Rules........................................................................................................................................... 11
Court Rules : Case Law: Fiduciary Duties ............................................................................................ 11
Fiduciary Duty Cases ........................................................................................................................... 12
Strother v. 3464920 Canada Inc. (2007) SCC .................................................................................. 12
CBC v Stewart .................................................................................................................................. 12
LSUC v Hunter ................................................................................................................................. 13
Administration of Justice Cases .......................................................................................................... 13
Zaldin v Zaldin ................................................................................................................................. 13
Confidential Information Cases........................................................................................................... 13
Szarfer v. Chodos ............................................................................................................................ 13
LSUC v. Barnett (1997) .................................................................................................................... 14
Current Client-Former Client Conflicts.................................................................................................... 14
General Principle ................................................................................................................................. 14
McDonald Estate ............................................................................................................................. 14
When are two matters RELATED?....................................................................................................... 15
When are two matters CONFIDENTIAL? ............................................................................................. 15
Former clients – General Protection of Confidentiality ...................................................................... 15
Former clients - transferring Lawyers ................................................................................................. 16
Ontario v Chartis Insurance (2017) ONCA ...................................................................................... 16
Former clients – Loyalty and the Administration of Justice (Other than confidentiality) .................. 17
Current Client-Current Client Conflicts ................................................................................................... 17
Joint Representation – Disputes ......................................................................................................... 17
Joint Representation – Conflicts ......................................................................................................... 17
Roth Estate v Juschka (2016) ONCA ................................................................................................ 18
Concurrent representation – unrelated matters ................................................................................ 18
R. v. Neil (2002) SCC ........................................................................................................................ 18
Strother v. 36464920 Canada Inc. (2007) SCC ................................................................................ 19
CNR v. McKercher ........................................................................................................................... 19
Advertising and Solicitation ........................................................................................................................ 20
Advertising and Marketing...................................................................................................................... 20
Solicitation .............................................................................................................................................. 22
Merchant v. LSS............................................................................................................................... 22
Competence ................................................................................................................................................ 22
Sources .................................................................................................................................................... 22
Code of Conduct: ................................................................................................................................ 23
LSA v. Syed (1994) ........................................................................................................................... 24
Private Law (Contract and Negligence) ............................................................................................... 24
McClenahan v Clarke (2004; ON SCJ) .............................................................................................. 24
Criminal Law: Ineffective Assistance ................................................................................................... 25
R. v. Fraser (2011) NSCA.................................................................................................................. 25
Advising and Instructions ............................................................................................................................ 25
Summary of Duties related to Advising .................................................................................................. 25
Competent Advice............................................................................................................................... 26
Competency Requirements for Advising ............................................................................................ 26
Candour Requirement for Advising .................................................................................................... 26
Compliance with the law requirement for Advising ........................................................................... 27
LSUC v. Sussman ............................................................................................................................. 27
Instructions ............................................................................................................................................. 28
Termination of the Lawyer-Client Relationship .......................................................................................... 28
Client Termination .................................................................................................................................. 28
Conclusion of Retainer ............................................................................................................................ 28
Lawyer Withdrawal ................................................................................................................................. 28
Justified withdrawal ................................................................................................................................ 29
Fees ......................................................................................................................................................... 29
Mandatory withdrawal ........................................................................................................................... 29
Upward Whistleblowing ......................................................................................................................... 29
Discipline Cases ....................................................................................................................................... 30
Criminal cases - FLS ............................................................................................................................. 30
Alberta................................................................................................................................................. 30
R. v. Cunningham (2010) SCC .......................................................................................................... 31
Obligations on Withdrawal ..................................................................................................................... 31
Successor Lawyer .................................................................................................................................... 32
Confidentiality ............................................................................................................................................. 32
When does the duty arise? ................................................................................................................. 32
What type of information is protected? ............................................................................................. 32
What does the duty mean for the lawyer? ......................................................................................... 33
The No Gossip Principle ...................................................................................................................... 33
What happens if you breach duty? ..................................................................................................... 33
Examples from cases ........................................................................................................................... 33
Solicitor-Client Privilege .............................................................................................................................. 34
When does the duty arise? ................................................................................................................. 34
What type of information is protected? ............................................................................................. 34
What does the duty mean for the lawyer? ......................................................................................... 34
What happens if you breach the duty? .............................................................................................. 35
Examples from the cases .................................................................................................................... 35
Litigation Privilege....................................................................................................................................... 35
Examples from cases ........................................................................................................................... 35
Comparisons ........................................................................................................................................... 35
Similarities ........................................................................................................................................... 36
Differences .......................................................................................................................................... 36
Class Notes .......................................................................................................................................... 36
Exclusions ................................................................................................................................................ 37
Criminal Communications Exclusion – Privilege ................................................................................. 37
R. v. Campbell 1999 SCC.................................................................................................................. 37
Criminal communications exclusion – Confidentiality ........................................................................ 38
Lawyer response? ............................................................................................................................... 38
Evidence/property .............................................................................................................................. 38
Confidentiality and Privilege Exceptions..................................................................................................... 38
Future Crimes Exception – Privilege and Confidentiality........................................................................ 38
Smith v. Jones (1999) SCC ............................................................................................................... 38
In the Code .......................................................................................................................................... 39
Spalding and Zimmerman ............................................................................................................... 40
Innocence at Stake – Privilege Only ........................................................................................................ 40
R. v. McClure 2001 SCC ................................................................................................................... 40
R. v. Brown 2002 SCC ...................................................................................................................... 41
Statutory Override – Confidentiality and Privilege ................................................................................. 41
Goodis v Ontario 2006 SCC ............................................................................................................. 42
LSS v Merchant (2008) SKCA ........................................................................................................... 42
Constitutional Issues ........................................................................................................................... 43
Canada (AG) v FLS 2015 SCC ........................................................................................................... 43
Further Confidentiality Exceptions ......................................................................................................... 43
Other Issues – Confidentiality and Privilege ............................................................................................... 44
CONFIDENTIALITY & CANDOUR .............................................................................................................. 44
PROTECTING PRIVILEGE .......................................................................................................................... 44
DUTIES TO OTHERS ................................................................................................................................. 45
PHYSICAL EVIDENCE OF A CRIME ............................................................................................................ 45
Background ......................................................................................................................................... 45
Definitions ........................................................................................................................................... 45
Dilemma .............................................................................................................................................. 45
R. v. Murray ..................................................................................................................................... 46
Ethical Duties ...................................................................................................................................... 46
AB CC Rule 5.1-9.................................................................................................................................. 47
AB CC 5.1-9 – Commentary ................................................................................................................. 47
ADVOCACY .................................................................................................................................................. 47
Preliminary Matters ................................................................................................................................ 48
Meritorious Claims .................................................................................................................................. 48
DCB v. ZELLERS ................................................................................................................................ 49
Discovery/Disclosure............................................................................................................................... 49
General duties ..................................................................................................................................... 49
Duties re Witnesses ............................................................................................................................ 49
Duties re Undertakings ....................................................................................................................... 50
Other Duties ........................................................................................................................................ 50
Grossman et al v. TGH ..................................................................................................................... 50
Honesty and Candour ............................................................................................................................. 51
Own Client........................................................................................................................................... 51
Other Lawyers ..................................................................................................................................... 51
The Court/Tribunal.............................................................................................................................. 51
Correcting Errors ................................................................................................................................. 52
Advocacy – Other Topics............................................................................................................................. 53
Ex-Parte Applications .............................................................................................................................. 53
General duties ..................................................................................................................................... 53
Presentation of Evidence ........................................................................................................................ 53
Evidence and the Duty of Candour ..................................................................................................... 53
Ensuring the integrity of Evidentiary Process ..................................................................................... 54
R. v. Sweezey (1987) Nfld. CA ......................................................................................................... 55
General Motors of Canada Ltd. v. Canada (2008) TCCA ................................................................. 55
Lawyer as Witnesses ........................................................................................................................... 56
Cross-Examination .................................................................................................................................. 56
R. v. Lyttle (2004) SCC ..................................................................................................................... 57
R. v. R (A.J.) (1994) ONCA ................................................................................................................ 57
Relevant Adverse Authority .................................................................................................................... 58
Ethical duty to disclose relevant adverse authority............................................................................ 58
GMAC v. Isaac Estate (1992) (Funduk) ............................................................................................ 58
Lawyer Speech ............................................................................................................................................ 58
Public Statements ................................................................................................................................... 59
General Duty of Civility ........................................................................................................................... 59
Criticism of other Lawyers ...................................................................................................................... 60
LSBC v. Laarakker (2011) LSBC ........................................................................................................ 60
Law society of Upper Canada v. Groia 2016 ONCA 471 .................................................................. 61
Criticizing judges and the legal system ................................................................................................... 62
Doré v Barreau du Quebec , 2012 SCC 12 ....................................................................................... 63
Policy issues ............................................................................................................................................ 63
Regulation of Lawyers
Self - Regulation
LSA CC 7.1-3; 7.1-4 and Commentaries
Who
 Provincial Law Societies (e.g. Law Society of Alberta)
o Run by elected lawyer to self-govern lawyers
o Canada has the strongest self-regulating structure
 Federation of Law Societies
o Created a model code of conduct
 NCA (National Committee on Accreditation (Part of FLS)
 Canadian Bar Association (Advocacy role)
What
 Entry regulation
o Education
 Law Schools
 Articling
 LPP (alternate to articling)
o Character (must be demonstrated to be of good character)
 Unauthorized Practice of Law
 Conduct unbecoming (extra-professional misconduct)
 Structure of legal practice (where lawyers can practice, etc..)
 Conduct Regulation
o Codes of Professional Conduct (CPC)
 Comes from FLS
 Originates from CBA
 CC Duties
o Clients (e.g. confidentiality, avoidance of conflicts, competence, candour and honesty)
o Courts (e.g. Honesty, must not mislead the court)
o Other lawyers/profession (e.g. civility)
How
 Rule Making power
o Admission rules
o Codes of conduct
o Practice rules (eg business structures, accounting)
 Audits
 Adjudication
o Admission - character and credentials
o Discipline for professional misconduct/conduct unbecoming
o Disciplinary hearings - rigorous procedural fairness
Other Lawyer Regulation
Who
 Employers (DOJ, Law firms)
 The Courts
What
 Termination of employment or disciplinary action (by employers)
Courts can:
 Action in Negligence
o Failure to provide service of reasonably competent solicitor
 Breach of contract (retainer issues)
 Breach of fiduciary duty
o Failure to fulfill obligations when in conflict of interest
o Failure to disclose information or misrepresents information to client
o Undermines the purposes of her representation of the client
 Ineffective assistance of counsel

o Grounds for appeal of criminal conviction
 Prosecutorial misconduct
o Grounds for appeal of criminal conviction
 Inherent jurisdiction over the process of the court
o Contempt power
o Remove counsel for conflicts of interest (litigation or not)
 Confidentiality
o Private law action for breach of confidence
o Evidence - Solicitor-client privilege
How
 Initiate of court proceedings (originating notice or statement of claim)
 Motion during proceedings
 Grounds for appeal
Conflicts of Interest
General Principles
LSA CC 3.3-2; 3.4-12–3.4-14; 7.3-1; 7.3-2 and Commentaries
The Lawyer’s Duty (From judicial Decisions)

 A lawyer has a “fundamental duty… to act in the best interest of his or her client to the exclusion of all
other adverse interests, except those duly disclosed by the lawyer and willingly accepted by the client”
--Strother v. 3464920 Canada Inc. 2007 SCC 24
The Lawyer’s Duty (From Code)

 “A lawyer must not act or continue to act for a client where there is a conflict of interest, except
as permitted under this Code”
FLS MC Rule 3.4-1; AB CC 3.4-1
What is the concern?

 Risks of impaired representation (duty of Loyalty)
 Risks to client confidentiality
 Risks to the fair administration of justice
 Risks of improper advantage taking
How does the law of conflicts work (enforcement)?

1- We resort to applications to court to remove lawyers/law firms from file
Prevents lawyers from acting in circumstances of an apparent conflict of interest
2- We sue for breach of fiduciary duty
Imposes liability for breach of fiduciary duty on lawyer who acts in a conflict and fails to fulfill her duties
to her client
3- Discipline through the law societies
A lawyer who acts in a conflict of interest may be found guilty of professional misconduct
Identifying conflicts: The Substantial Risk Test (GENERAL RULE)

 “A conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of
a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to
another client, a former client, or a third person”
A substantial risk is one that is significant and, while not certain or probable, is more than a mere
possibility. A client’s interests may be prejudiced unless the lawyer’s advice, judgment and action on
the client’s behalf are free from conflicts of interest.”
--R v Neil 2002 SCC 70
--FLS MC Rule 3.4-1, Comm. 2; AB CC 3.4-1 Comm’y 1
What is a “substantial risk”?

 A “genuine, serious risk to the duty of loyalty or to client representation”
--FLS MC Rule 3.4-1, Comm’y 2
 Objectively assessed: whether the “reasonably well-informed and objective lay person” would see the
lawyer’s representation as at risk
--Sky Properties Ltd. v. Wu (2003) ONSCJ (aff’d 2004 ONCA)
 Appearance that there may be an impairment of representation, not an actual impairment
Identifying conflicts: The Bright Line Test

 Applied when assessing a substantial risk in concurrent representation of current clients
FLS MC Rule 3.4-1, Comm’y 1; AB CC 3.4-3
A lawyer must not represent one client whose legal interests are directly adverse to the immediate
legal interests of another client, even if the matters are unrelated, unless both clients consent.
 Bright line test: A conflict arises where a lawyer acts for a client in a matter that is directly adverse to the
legal interests of another client, even if the matter is unrelated to the representation of that other client
--CNR Co. v. McKercher LLP 2013 SCC 39 at para. 8
 Court does not separately assess possibility of a substantial risk
Identifying conflicts: Protecting confidentiality
 “Nothing is more important to the preservation of this relationship than the confidentiality of information
passing between a solicitor and his or her client”
--MacDonald Estate v Martin (1990) SCC
 Conflict: When the lawyer has received confidential information from a solicitor-client relationship and
there is a risk that it will be used to the prejudice of the client
--MacDonald Estate
 Commonly: representation against former clients
 Usually assessed through assessing relationship between former and current retainers
 Courts would be concerned when a lawyer acts for a client against a former a client in a matter related to
what he acted on for the former client
Identifying conflicts: Improper advantage taking

 Flows from confidentiality/loyalty risks
 Conflict: When lawyer’s personal situation creates risk that the lawyer will take improper advantage of
client
 E.g., improper use of client’s confidential information for lawyer’s personal advantage
 E.g., pursuing lawyer’s interests rather than client’s
 This is really a sub-category of improper representation and confidentiality
Identifying conflicts: Protecting the Administration of Justice

 Least common instance of conflicts
 Where risk that lawyer will not fulfill duties to legal system/administration of justice
 E.g., over-commitment to client (personal relationship with); where lawyer material witness in case
 Two most common cases:
 Over identifying with client (personal relationship)
 Acting as both lawyer and witness
Curing conflicts with informed consent

 Informed consent can usually cure a conflict
 Must be based on full disclosure – including how conflict could affect client’s interests
 In writing or recorded in writing
 May be inferred in exceptional cases
 Consent may sometimes be provided in advance if it is sufficiently comprehensive to
contemplate the subsequent conflict
--FLS MC Rule 3.4-2; AB CC Rule 3.4-1, Comm’y 7-16; McKercher; MTM Commercial Trust v.
Statesman (2015 ABCA)
Type of conflicts
 Between a current client of the lawyer/firm and a former client of the lawyer/firm
 Between a current client of the lawyer/firm and another current client of the lawyer/firm
 Related matters
 Unrelated matters
 Between the lawyer and a former/current client of the lawyer/firm
When will a lawyer be disqualified?

 To avoid improper use of confidential information
 To prevent impaired representation
 To maintain the “repute of the administration of justice”
--CNR Co. v. McKercher LLP 2013 SCC 39
Lawyer-Client Conflicts
Code Rules
 A lawyer must not act in a case where the lawyer’s own interests create a substantial risk that the
lawyer’s representation of a client will be materially and adversely affected
 A substantial risk may arise where a lawyer’s personal loyalties, interests or beliefs would impair the
lawyer’s ability to carry out a representation
 Exceptions: client consent and the lawyer independently determines that ethical representation is
possible
LSA CC Rule 3.4-1, Comm’y 11; AB CC Rule 3.4-12 and Comm’y
When do these conflicts arise?
 “personal financial interest” in client’s affairs or in the matter

 A “sexual or close personal relationship with a client”
 A lawyer serving as a director of a corporation
--FLS MC Rule 3.4-1, Comm’y 11 (c)-(e); AB CC Rule 3.4-12 ,Comm’y 2
 Also: family relationships; a “strong belief or viewpoint”; “enmity towards a colleague acting for an
opposing party”; “unduly” favouring the client’s position
--AB CC Rule 3.4-12 ,Comm’y 2
Specific Restrictions:
 All transactions with clients must be fair and reasonable; must occur in accordance with rules
--FLS MC Rule 3.4-28 – 3.4-30; AB CC Rule 3.4-13
 May not borrow money from a client (exceptions if client bank etc.)
--FLS MC Rule 3.4-31 – 3.4-32; AB CC Rule 3.4-13, Comm’y 13
 May not lend money to a client or provide a personal guarantee (exceptions if client bank; compassionate
loans, e.g.)
--FLS MC Rule 3.4-33 – 3.4-35; AB CC Rule 3.4-13, Comm’y 14 and 15; 19-21
 May not accept a gift from client unless client has independent legal advice
--FLS MC Rule 3.4-37 – 3.4-39; AB CC Rule 3.4-13, Comm’y 16-18
 May not act as a surety
--FLS MC Rule 3.4-40 – 3.4-41
Court Rules : Case Law: Fiduciary Duties

• The following duties are from the common law
• These are not duties when a lawyer ought not to act because of a conflict of interest. These are conditions
that happen when a lawyer acted for a client in the presence of a conflict of interest and failed to fulfill his
fiduciary duties to them.
Violations:
 When a lawyer violates obligations to a client as a consequence of a conflict of interest or duty;
 When a lawyer undercuts the very nature of the representation the lawyer undertook to provide
 When a lawyer fails to disclose essential facts to a client, or misrepresents the facts
Personal conflicting interests are a common cause of lawyer breaches of fiduciary duty
Fiduciary Duty Cases

Strother v. 3464920 Canada Inc. (2007) SCC
Facts:
 Strother represented Monarch in tax transactions
 Provision relied upon repealed; he advised Monarch that they could not continue to do what they had
done
 Approached by former Monarch employee about work around
 Strother and former employee started Sentinel, which took advantage of work around
 Did not advice Monarch that his prior opinion was not accurate
Issue: Violation of duties to Monarch?
Analysis/Held:
 Strother’s financial interest in Sentinel created a conflict with his duties to Monarch (they were still
clients of Strother’s firm)
 Strother violated his fiduciary duties to Monarch by not advising them that his prior opinion was not
accurate
 The cause of the breach was his conflicting personal interests in Sentinel
 Violation of his fiduciary duties to Monarch
**Note: The conflict arose when he took the interest in Sentinel – i.e., before he actually breached his duties to
Monarch
**Dissent: did not agree that he had a duty to advise his former client that his prior opinion was not accurate
anymore.
CBC v Stewart
Facts:
 Robert Stewart killed pedestrian while driving drunk
 Lawyer at trial conducted obnoxious defence – that victim involved with drugs or pushed under car by
husband (lawyer had brain tumor). Stewart convicted
 Retained Greenspan for sentencing
 Greenspan tried to undo damage of defence
 Stewart sentenced to 3 years
 Scales of Justice episode on Stewart case
 Written and narrated by Greenspan

 Stewart objected
 Some facts wrong, including inference that Stewart was a party to the obnoxious defence
 Stewart sued Greenspan
Held:
 No violation of confidentiality because information in public record
 But violated ethical duties because promoted self at client’s expense
 Breached fiduciary duty (of loyalty) because undermined the very thing he had been retained to
achieve for Stewart and did so for his own benefit
 Stewart: $5000 in damages
LSUC v Hunter
 Treasurer of LSUC; President of FLS & Partner at BLG
 2000 – Representing XY in custody case
 2003 – Commenced affair with XY
 November 2005:
 November 21: Showed her LSUC rule and asked her to read it and asked her to sign
acknowledgement of that
 After she signed told her he’d had affairs with 2 other women and affair with her was over
 November 29 sent her e-mail asking her to confirm his description of relationship
 November 30 he and lawyer showed up at her house to get her to confirm relationship was OK
Held:
 Conflict from sexual relationship – jeopardized ability to provide independent advice
 Jeopardized XY’s ability to exercise her rights as a client
 The “acknowledgement” he had her sign was inaccurate
 That and the e-mail/house call were inappropriate and injurious to her
 Suspended for 60 days and fined $2500
Administration of Justice Cases

Zaldin v Zaldin
Facs:
 Family breakdown
 Uncle representing husband
 Lawyer/Uncle improperly disclosed confidential information; tried to “undermine independence and
objectivity” of Children’s Lawyer and then cover up what was done
Held:
 Lawyer/Uncle removed
 His “loyalty to or representation of his client has conflicted with his duties to the Court…the right of the
Applicant to counsel of his choice must take second place to the maintenance and integrity of the
administration of justice”
Confidential Information Cases

Code Rules:
 Cannot disclose information for the benefit of the lawyer or a third person without the consent of the
client or former client
 Includes writing a memoir or autobiography
 Consent
 Fully informed – likely includes that using information for own benefit
--FLS MC Rule 3.3-2; AB CC Rule 3.3-2
Szarfer v. Chodos
 Used client’s confidential information to commence affair with client’s wife
 A fiduciary cannot use client’s confidential information to own benefit
 Remedy: Must disgorge any profits earned from the disclosure
LSUC v. Barnett (1997)

 Entered into agreement with credit card company to finance clients
 Agreed to notify the company if client said anything that raised the risk of non-payment
 Risk of improper disclosure of confidential information
Current Client-Former Client Conflicts
General Principle
 A lawyer may not act against a former client in a matter that is the same or related to the matter on
which the lawyer was formerly retained for that client, or in any other matter with respect to which the
lawyer has relevant confidential information the use of which may prejudice the former client, Unless
client consents
--FLS MC Rule 3.4-10; AB CC Rule 3.4-6 [PERSONAL REPRESENTATION]
 A law firm is also prohibited from acting against the former clients of a lawyer in the firm, but the conflict
may be cured by consent through screening devices
* So if my firm is acting against my former client, the conflict can be cured by consent or
screening devices (like me not being involved in the file, no access to files in the matter etc..)
 Screening devices must be erected in advance, and must be capable of being effective
 Include prohibition on involvement; documented safeguards on file access
--FLS MC Rule 3.4-20, Comm’y 3; AB CC Rule 3.4-10, Comm’y 11-14
McDonald Estate
Facts:
 Twaddle and Dangerfield acted for Martin
 Thompson Dorfman and Sweatman (TDS) acted for Gray/Macdonald Estate
 1985 Twaddle to Bench
 Dangerfield to Scorton Dooley (no longer acting for Martin)
 1987 Dangerfield to TDS (i.e. ended up at a firm that is acting against her former client)
 No safeguards to protect confidential information
 Martin sought to have TDS kicked off file
 Dangerfield and TDS swore affidavits that had not shared information
Held:
 Conflicts rules maintain integrity of legal system

 Must reflect realities of modern legal practice – e.g., large law firms
 Must ensure that confidential information is protected
 TEST:
 Did the lawyer receive relevant confidential information attributable to a lawyer-client
relationship?
 If the prior retainer and the new retainer are on related matters it is presumed that
relevant confidential information exists.
 Cannot rebut presumption by disclosure of the confidential information
 If a lawyer holds such information cannot personally act against the former client
 Lawyer’s firm can act only if “clear and convincing evidence that reasonable measures have
been taken to ensure that no disclosure will occur”
 Affidavits and undertakings not enough
** TDS off file because D had relevant confidential information and no measures taken to prevent
disclosure
[Minority]:
 Once relevant confidential information held by one lawyer, firm must be off file (more strict
than majority)
 Notes that large firms still the minority
When are two matters RELATED?

 Assessed functionally, from a reasonable client’s perspective: are the matters the same or
related?
--Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. (2008) NSCA
 Where confidential information from one would be relevant to the other: “For the court to
find that the retainers are sufficiently related it must conclude that in all the circumstances it is
reasonably possible that the lawyer acquired confidential information pursuant to the first
retainer that could be relevant to the current matter”
--Chapters Inc. v. Davies, Ward & Beck (2001) ONCA
 Where link between evidence relevant to each matter
--Orr v. Alook (2015) ABQB
When are two matters CONFIDENTIAL?

 Scope different from duty of confidentiality
--FLS MC Rule 3.4-18, Comm’y 2; AB CC Rule 3.4-10 Comm’y 3
 Does not include information that is generic or in the public domain
--AB CC Rule 3.4-6 Comm’y 3
 Must be confidential in relation to new client
--Richards v Producers Pipelines Inc. (1995) SKCA
**This qualification does not apply to past joint retainers – cannot act for one client against past
client on matter on which previously represented them jointly
 Irrelevant that lawyer does not remember information
--R v Sanhu (2011) BCSC
Former clients – General Protection of Confidentiality

 General duty not to disclose former client’s information to his/her disadvantage or someone
else’s advantage
--FLS MC 3.3-2; AB CC 3.3-2
 AB Commentary
 A general duty to disclose information to a client if needed for the retainer
 Must therefore decline to act if:
 Have material confidential info from client
 Client will not consent to disclosure
 Cannot carry out representation of new client properly or new client “unwilling
to accept legal advice based on the information without actually being privy to
the information”
Examples:
 Cannot cross-examine former client on matters related to past retainer, even if not acting
against former client
--R. v. Brissett (2005) ONSCJ
 If writing a memoir must obtain former client’s consent to disclose confidential information
--FLS MC Rule 3.3-2, Comm’y 1; AB CC Rule 3.3-2, Comm’y 1
Former clients - transferring Lawyers

 Where transferring lawyer has relevant confidential information of a former client, new firm can
only act against lawyer’s former client if consent or appropriate safeguards
 If the transferring lawyer does not possess relevant confidential information that could
prejudice the former client, the transferring lawyer must not, unless the former client consents
--AB CC Rule 3.4-10
Ontario v Chartis Insurance (2017) ONCA

 Foulds at firm acting for Ontario in dispute with insurance company re coverage dispute
 Foulds acted on the file; settled with all insurers except AIG
 McInnis of LBM acted for AIG
 McInnis approached Foulds to join LBM, a 14 member litigation boutique as a partner
 Put in place screens and other safeguards to safeguard confidential information possessed by
Foulds.
 Foulds worked for AIG and 50-60% of his work was with McInnis
 Ontario objected.
Held:
 Application of MacDonald Estate: Did the lawyer receive confidential information and is there a
risk it will be used to prejudice the client?
 Clearly Foulds had confidential information; Issue is whether firm rebutted presumption that
confidential information would be shared
 Compliance with the LSUC guidelines not determinative re disqualification but it is a “significant
factor to be considered” (CB 319)
 In some cases may not be possible to rebut the presumption
 Here McInnis works closely with Foulds, and Foulds acts for AIG; Any disclosure of information
highly prejudicial to Ontario.
 Firm has “technically” complied with LSUC guidelines but not with the “spirit” of the guidelines
(CB 321)
 Integrity of the legal profession more important than a client’s choice of lawyer or lawyer
mobility.
 Upholds Div Court decision to disqualify the firm.
Former clients – Loyalty and the Administration of Justice (Other than confidentiality)
 Lawyer/law firm cannot act against a former client if doing so would deprive the client of the
benefits of the past representation. (even when the firm/lawyer has no confidential
information)
--Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. (2008) NSCA
--GVRD v. Melville (2007) BCSC
 I.e., cannot act against former client in a same or related matter, even without risk to
confidentiality, if would deprive former client of benefits of past representation
 Perhaps Rule 3.5-6 comm’1
Current Client-Current Client Conflicts
Joint Representation – Disputes

 A lawyer cannot act for opposing sides to a dispute (Blanket Prohibition)
 Assessing a dispute – hostility; importance of unresolved matters; intransigence; whether
advocacy required
--AB CC Rule 3.4-2, Comm’y 3
 Extends to where a related person would be on other side (n/a to the related person’s firm)
--AB CC Rule 3.4-14
 Applicable to firm mergers
--AB CC Rule 3.4-11
Joint Representation – Conflicts

 Lawyers must assess whether joint representation is appropriate given the nature of the conflict
or potential conflict between the parties;
 Informed consent is not sufficient
 Lawyer will be liable if does not properly represent interests of one party
--Roth Estate v Juschka (2016) ONCA
 Can act for both sides of a conflict only if:

 Consent with full disclosure
 Clients’ best interests
 Clients know no confidentiality btw them
 Advised that if a conflict develops, have to withdraw
--AB CC Rule 3.4-5; FLS MC Rule 3.4-5
 What to take into account in assessing best interests (complexity of transaction; sophistication
of parties etc.)
--AB CC Rule 3.4-5, Comm’y 5-6
 AB – Applies to mergers (3.4-11) and to related parties (3.4-14)
Roth Estate v Juschka (2016) ONCA

Facts:
 Lawyer acted for both parties to share transaction
 Parents, daughter and son-in-law incorporated a business to operate a grocery store.
 Later restructured so children owned store but provided a guaranteed income stream to parents
 Children also provided a promissory note of $406,800 forgiven on parents’ deaths but “due and
payable” if store sold
 Lawyer acted for all four parties
 Parents received $1.7 million in payments;
 Children unable to continue to make payments and sold the store; father had died but mother
made a demand on the note
Held:
 Lawyer violated fiduciary duties by acting for all parties
 The parties’ interests were in potential conflict
 The lawyer never considered if there was a conflict. He did not explain the conflict or obtain
consent to act for both sides. “That the parties were amicable at the time of the transaction will
normally be the case… However, that fact is wholly irrelevant to whether their interests in the
transaction had the potential to conflict”
 The transaction was in substance disadvantageous to the children – they risked paying the
parents twice for the same thing. Important parts were not documented, and the effect on
them not fully understood or explained.
Concurrent representation – unrelated matters

 Where act for clients on unrelated matters
 E.g., act for ABC Corp. in a breach of contract litigation against XYZ Corp.
 Another lawyer at the firm acts for XYZ Corp. in an intellectual property patent matter.
 Representations are unrelated but representation of ABC is contrary to the legal interests of XYZ
R. v. Neil (2002) SCC

 The bright line [rule] is provided by the general rule that a lawyer may not represent one client
whose interests are directly adverse to the immediate interests of another client – even if the
two mandates are unrelated – unless both clients consent after receiving full disclosure (and
preferably independent legal advice), and the lawyer reasonably believes that he or she is able
to represent each client without adversely affecting the other
Codified:
 “The bright line rule prohibits a lawyer or law firm from representing one client whose legal
interests are directly adverse to the immediate legal interests of another client even if the
matters are unrelated unless the clients consent”
--FLS MC Rule 3.4-1, Commentary 1
 “A lawyer must not represent one client whose legal interests are directly adverse to the
immediate legal interests of another client, even if the matters are unrelated, unless both
clients consent”
--AB CC Rule 3.4-3
Framework Note:
• If there’s a violation of the bright line test, then there is a substantial risk of a material adverse effect,
• If there’s no violation of the bright line test, then you go on to consider whether there’s other ways that
the substantial risk exists.
Remaining questions
 What kinds of interests need to conflict?
 What about tactical use of the bright line rule?
 What about institutional or governmental clients?
 Are there additional duties? E.g., can a lawyer drop a current client to avoid a conflict ?
Strother v. 36464920 Canada Inc. (2007) SCC

Facts:
 Strother & Davis acted for Monarch on film tax deals
 1997 loophole closed; Monarch moved to close business
 Darc, former employee of Monarch approached Strother with new tax plan
 Strother and Darc formed Sentinel to exploit new structure
 Made $60 million
 Did not tell Monarch (who was still his client when he started the new company)
Held:
 Strother breached contract and fiduciary duty – did not fulfill duties to Monarch (which included duty to
advise them of new legal opportunity) because of his pursuit of personal interests
 No conflict simply from representation of Sentinel –because it was not “directly adverse” to Monarch’s
legal interests. Economic conflict only
 I.e.: issue is lawyer-client conflict not client-client conflict
CNR v. McKercher
Facts:
 McKercher acted for CNR in three current cases
 Accepted retainer to represent plaintiffs in $1.75B class action suit against CNR
 Did not advise CNR that it was acting nor seek its consent
 CNR learned of file when statement of claim served
 McKercher terminated CNR files at that time
Held:
 Affirms the bright line rule
 But notes:
 New representation must be directly adverse to immediate interests of client
 Only applies to legal interests
 May not be invoked by a party seeking to abuse it (i.e. tactical reasons)
 In some cases it may be unreasonable for a client to expect that its law firm will not act against it
in unrelated matters
 If bright line rule not violated then go on to consider the substantial risk test
 On Lawyer Duties:
 Cannot drop a client to avoid a conflict
 Must advise a client if acting against it, even if no bright line violation
 If new client does not permit disclosure that acting against other client, cannot act for new client
 McKercher violated because it acted directly adverse to CNR’s interests without consent or
candour, and it was not unreasonable for CNR to think they wouldn’t do that
 Disqualification?
 Only the “repute of the administration of justice” was at issue because McKercher no longer
acting for CNR;
 Remitted to trial judge to consider whether disqualification required
 McKercher withdrew
Advertising and Solicitation
LSA CC Rules 4.1-1 – 4.4-1 and Commentaries
Advertising and Marketing
Constitutional Context
 Rocket v. Royal College of Dental Surgeons 1990 SCC
Held:
◦ Commercial speech protected by s. 2(b)
◦ Can be regulated to ensure not
 Misleading
 Irresponsible
 Based on unverifiable claims
◦ Broad ban of advertising was unconstitutional
So the rule was set as follows:

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.
Key Points:
 Advertisements must be accurate
 Advertisements must be in the public interest/consistent with professionalism, Key questions
1- Does the advertisement provide useful information to the public?
2- Is it misleading?
3- Does this ad bring the administration of justice into disrepute?
 So as long as the advertisement is accurate and provides useful information, even if its crass or a bit
vulgar, we should think of it as appropriate business advertising for lawyers.
Examples of improper marketing

 I always win!
Indicating past success without qualifying it
 I’m better!
Qualitative superiority
 You’ll win! I’m an a******!
Implying Lawyer aggression
 They’re a******!
Disparaging or demeaning others
 **Ad flashes pictures of vulnerable children lawyer helped in the past
Testimonials/endorsements with emotional appeals
 Exploiting the vulnerable
FLS MC Rule 4.2-1, Comm’y 1; AB CC Rule 4.2-1, Comm’y
Advertising Fees
A lawyer may advertise fees charged for legal 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.
Specialization
A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so
certified by the Society.
 Can indicate practice areas but “specialist” designation has to follow from certification.
 Certification can be from any jurisdiction
 Alberta does not offer certification
Examples from Sex Crime Lawyers (Professor Elaine Craig paper)

Is it ethically acceptable to
 Advertise that you obtained acquittal for factually guilty clients?
 Advertise that you are aggressive in conduct of defence
 Trivialize sexual violence
 Promote rape myths
 Inaccurate law on website?
A: No
Solicitation
Class definition: Is where you approach someone individually to try and get their work
Offering Legal Services – Restrictions

In offering legal services, a lawyer must not use means that:
(a) are false or misleading;
(b) amount to coercion, duress, or harassment;
(c) take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet
recovered; or
(d) otherwise bring the profession or the administration of justice into disrepute.
FLS MC Rule 4.1-2; AB CC Rule 4.1-2
Commentary:
 Acceptable if contacted by a “close relative, or a personal friend” of the person who had traumatic
experience
 Prohibition is of “unconscionable, exploitative or other means that bring the profession or the
administration of justice into disrepute”
Merchant v. LSS
 Misleading letter to residential school survivors
◦ Letter says “nothing to lose” and indicates recovery straightforward
◦ Contrast to retainer agreement:
 MLG could withdraw from representation
 If client withdrew/transferred fees due at hourly rate
 If MLG decided not to proceed client responsible for Court and out-of-pocket costs
 Not misleading
◦ Indicating potential compensation
 Undignified/bad taste
◦ Assumptions about the recipient without knowledge
Competence
Chapter2, Rules 3.1-1, 3.1-2, 3.2-1, 3.2-2 and Commentaries
Sources
 Code of professional conduct
 Contract law (retainer agreement)
 Tort law (negligence)
 Criminal law – ineffective assistance of counsel cases
Code of Conduct:
 Definition: “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
--AB CC 3.1-1; FLS MC 3.1-1
 Duty: Lawyer must perform all legal services to the standard of a competent lawyer
--AB CC Rule 3.1-2; FLS MC Rule 3.1-2: “A lawyer has a duty to provide courteous, thorough and
prompt service to clients. The quality of service required of a lawyer is service that is
competent, timely, conscientious, diligent, efficient and civil.”
 Commentary – emphasizes timely and effective communication, producing high
quality work and effective practice management, including avoiding improper use of
intoxicants/drugs.
Class Notes:
 Generally the courts are hesitant to say this lawyer is incompetent

 Competence is not something you be, its something is you do
 Competence depends on the context
 VERY important to know when you are not competent.
Competence Includes
a) Know the law and stay current with it
b) Know the facts and what the client wants
c) Do the work the representation requires – research, analysis, writing, problem solving, advocacy
d) Communicate with client
e) Be conscientious, diligent and cost-effective
f) Be wise
g) Be ethical
h) Manage your practice
i) Pursue appropriate professional development
j) Adapt to change
Incompetence
“This rule does not require a standard of perfection. An error or omission, even though it might be
actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the
standard of professional competence described by the rule. However, evidence of gross neglect in a
particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a
failure, regardless of tort liability. While damages may be awarded for negligence, incompetence can
give rise to the additional sanction of disciplinary action”
AB CC RULE 3.1-2, Comm’y 16; FLS MC Rule 3.1-2, Comm’y 15
Class Note:
Examples of incompetence
 Entering into a retainer in an area they don’t know very well

 Improper delegation
 In effective practice management
 Drafting documents
 Failing to review a file properly and hence not following instructions properly
 Incompetence in the conduct of litigation (but this is rare because lawyers have lots of discretion
here)
LSA v. Syed (1994)

Facts:
 Insufficient time interviewing accused
 Elected provincial trial without consultation
 Put forward proposal of settlement without ascertaining guilt
** Did not know accused’s age or complainants’ age
Held:
 Incompetent
 “The Hearing Committee was struck by the Member’s failure to conduct even a most cursory
investigation, his failure to advise [x] of his options thereby precluding the possibility of
informed instructions being given, and his failure to recognize and, as a consequence, consider
potential defences in a serious criminal case” (CB 183)
 Reprimanded
Private Law (Contract and Negligence)

 Contract: Failure to fulfill express and implied terms of retainer agreement = breach of contract
 Negligence: Must provide the service that would be provided by the reasonably competent
lawyer in the same circumstances (SoC) (Central Trust Co. v. Rafuse (1986) SCC)
 Examples:
 Failure to identify relevant statutory provisions (Rafuse)
 Failure to call expert witness necessary for defence of claim (Henderson v.
Hagblom (2003) SKCA)
 Courts assess things objectively and the do use expert evidence
 When lawyers are found negligent:
 Not knowing the law
 Negligent drafting
 Failure to manage client expectations
McClenahan v Clarke (2004; ON SCJ)

Facts:
 Wright represented Billes in negotiation of Separation Agreement
 She sued him for negligence
Held:
 Standard of care: “reasonably competent, prudent and diligent lawyer handling a matrimonial
file in Eastern Ontario in 1994”
 Burden of proof on Plaintiff
 Standard of Care not met
 Lawyer did not appreciate the “emotional or psychological pressures on Heather Billes” (para.
73) from ex-husband and father
 Took instructions from father without ensuring they were hers
 Assumed alliance of interest between father and daughter – did not advise of risks from relying
on father
Criminal Law: Ineffective Assistance

 Appellant accused must show (BOTH)
◦ That the lawyer’s conduct or omissions amount to incompetence
◦ That incompetence resulted in a miscarriage of justice
◦ If the assistance was deficient because of prejudice
R. v. Fraser (2011) NSCA

Facts:
 Convicted of touching for a sexual purpose
 Teacher; complainant was former student
 What the lawyer didn’t do:
 Challenge jurors for cause on racial bias
 Call witnesses to support accused’s story
 Properly cross-examine complainant at preliminary inquiry
 Prepare accused for trial
 Bring proper rape shield application
 Address new allegations by complainant
Held:
 “trial counsel’s actions, omissions, and choices could not have been the result of reasonable
preparation or professional judgment… Mr. Fraser did not receive a fair trial. The legal
representation he obtained fell far short of the mark reasonably expected of any defence
counsel. His constitutional right to make full answer and defence was compromised. A
miscarriage of justice occurred”
 He didn’t consider any of the effects that race would have on the jury/trial
Advising and Instructions

Rules 3.2-3 – 3.2-6, 3.2‐10, 3.2‐13, 3.2‐15 and Commentaries
Summary of Duties related to Advising

• Competency: Advice must be competent
• A lawyer may advise a client on non-legal matters (but must make that clear)
• Honesty and Candour: Advice must be honest and candid
• Compliance with the law: A lawyer must not knowingly assist the client to commit a crime or
fraud
Competent Advice
• Advice must be at the standard of the “competent lawyer”
• Standard of care - Central Trust Co. v. Rafuse [1986] 2 SCR 147
• Reasonable care, skill and knowledge
• Know the law
• Know the relevant facts
• Apply the law to the facts persuasively
• Standard of care “that of the reasonably competent solicitor, the ordinary competent
solicitor and the ordinary prudent solicitor”
• Held: Negligent due to failure to ascertain existence of provision in statute and to advise
client accordingly
Competency Requirements for Advising

• Lawyer should “clearly specify the facts, circumstances and assumptions on which an opinion is
based”
--FLS MC Rule 3.1-2, Comm’y 8; AB CC Rule 3.1-2 Comm’y 9
• Do not give bold or over-confident assurances
• If you advise on non-legal matters, make sure you “point out any lack of experience or other
qualification in the particular field”
Candour Requirement for Advising

• “lawyer must be honest and candid and must inform the client of all information known to the
lawyer that may affect the interests of the client in the matter”
• Commentary
• Disclose any relationship to parties, interests or matters
• Opinion based on:
• Sufficient knowledge of the facts
• Applicable law
• Lawyer’s experience and expertise
 “Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation
of the rule. In communicating with the client, the lawyer may disagree with the client’s
perspective, or may have concerns about the client’s position on a matter, and may give advice
that will not please the client. This may legitimately require firm and animated discussion with
the client.”
Compliance with the law requirement for Advising

The Challenge
• Legal opinion can shield client from consequences of unlawful action

• “I acted on legal advice” a defence from liability
• Thus: pressure to provide advice validating desired course of action
• Plus: meaning of law can be contestable. What are the limits?
 Lawyers are not liable for erroneous advice if it causes damage/injury to a 3rd party.
 Fundamentally, the people that make the call are the clients and not the lawyers.
From lecture:
 The case de paul morrin, who was wrongfully convicted.
 Lawyer said: you have to plead not guilty, but in the alternative not guilty by reason of
insanity. And if you don’t do that I won’t take your case.
 The Unibomber case: he did not want to plead guilty. His lawyer refused to go with that because
he would have for sure gotten executed.
Crime/Fraud
• Must not advise or assist in fraud, crime or illegal conduct, nor instruct the client on how to
violate the law and avoid punishment. AB CC 3.2-13
• Commentary
• Includes duty to make reasonable inquiries if suspicious
• Ask hard questions
• Does not prevent conduct supported by reasonable and good faith argument
• Can explain options but not help pursue improper objective (AB, Comm’y 5)
• Merely providing legal information not a problem (AB, Comm’y 6)
• Not the same as encouraging a client to commit an unlawful act
LSUC v. Sussman
Facts:
• Advised client not to comply with court order for access to child
• No imminent risk or danger to the child
• Did not take steps to vary court order
Held:
“There can be no behaviour more disruptive to our system of justice and more likely to bring
its administration into disrepute than a lawyer, while representing a party to a dispute,
counselling his or her client to disobey the clear, unequivocal terms of a Court Order” (CB 414)
Instructions
• Advice to a client, and actions on behalf of a client, must be based on a client’s instructions
unless it is within the “express or implied authority” of the lawyer (AB CC Rule 3.2-4)
• If instructions from a third party, lawyer must make sure they reflect the client’s wishes (AB CC
Rule 3.2-6)
• A lawyer must make “reasonable efforts” to find a client who cannot be located (AB CC Rule 3.2-
5)
• When a client has diminished capacity, the lawyer must maintain a normal lawyer-client
relationship “as far as reasonably possible” (FLS MC Rule 3.2-9; AB CC Rule 3.2-15)
Termination of the Lawyer-Client Relationship

Termination – Class Notes:
 If you are a lawyer and notice someone at your client’s company doing something
wrong/unethical, keep going up the ladder until you have to withdraw.
 Criminal cases (Cunningham): you can not simply withdraw if you are on record for someone,
you need the permission of the code to withdraw.
 Court can refuse unless there are ethical issues or it will not adversely affect the lawyer.
 In civil cases, once a case goes to trial…the rule is kind of the same
Client Termination
 “A client has the right to terminate the lawyer-client relationship at will”
--AB CC Rule 3.7-1, Comm’y 1;
--FLS MC Rule 3.7-1, Comm’y 1
 A lawyer must withdraw when “discharged by a client”
--AB CC Rule 3.7-5(a); FLS MC Rule 3.7-7(a)
Conclusion of Retainer
 Termination of lawyer-client relationship at end of retainer
 Lawyer may need to clarify end of retainer to ensure no ongoing duties to the client
Lawyer Withdrawal
 Lawyer may not withdraw “except for good cause and on reasonable notice”
“Although the client has the right to terminate the lawyer-client relationship at will, a lawyer
does not enjoy the same freedom of action. Having undertaken the representation of a client,
the lawyer should complete the task as ably as possible unless there is justifiable cause for
terminating the relationship. It is inappropriate for a lawyer to withdraw on capricious or
arbitrary grounds” (Comm’y 1)
Justified withdrawal
 Lawyer may withdraw where “serious loss of confidence”
 Loss of confidence where client:

 Deceives lawyer
 Won’t take advice on a significant point
 Persistently unreasonable or uncooperative in a material respect
 Not providing adequate instructions
--Commentary 1
**Lawyer should not use threat of withdrawal to force a hasty decision on client (Commentary)
Fees
 Lawyer may withdraw for non-payment “unless serious prejudice to the client would result”
 Give client time to find new counsel

 Give other counsel time to prepare
--Commentary 1
Mandatory withdrawal
 Client termination
 Client persists in instructing lawyer to act contrary to ethics
 Lawyer is not competent to continue
** Also where a conflict arises that cannot be avoided except through withdrawal
Upward Whistleblowing
 When an organization intends to act illegally, fraudulently, criminally or dishonestly
 The lawyer must advise the person providing instructions of the nature of the conduct
 Illegal/fraudulent conduct can include omissions (Comm’y 3)
 Take advice to higher-ups in the organization, including to CEO and to the Board, until
the matter is dealt with appropriately
 Withdraw if advice ignored (which may include resignation – Comm’y 4)
--AB CC Rule 3.2-14; FLS Rule 3.2-8
Discipline Cases
 Lawyers disciplined for:
 Improper withdrawal
 Having retainer purport to allow lawyer to withdraw at will
 For improper disclosure of confidential information when with
 No discipline where lawyer withdrew after client refused to take lawyer’s advice
Criminal cases - FLS

 Lawyer must not withdraw for non-payment of fees if trial date set such that client could not
get other lawyer and adjournment not feasible
--FLS MC Rule 3.7-5
 If withdrawing in those circumstances for reasons other than non-payment the lawyer should
seek adjournment and may only withdraw with court’s permission
--FLS MC Rule 3.7-6
 May withdraw if time sufficient for client to obtain new lawyer and for new lawyer to prepare
and
 There is cause for withdrawal
 Notifies client in writing
 Settles account
 Notifies Crown and court, and complies with rules of court
--FLS MC Rule 3.7-4
*** Privilege must be protected
Alberta
 “Usual practice” in Alberta is for lawyer withdrawing from any criminal proceeding to apply for
leave in open court (3.7-4, Comm’y 1)
 Withdrawal permitted where sufficient interval before trial to allow client to obtain new lawyer
in accordance with Rule 3.7-4(same as FLS 3.7-4)
 No equivalent to 3.7-5 or 3.7-6 of the FLS
R. v. Cunningham (2010) SCC
 Cunningham sought to withdraw for non-payment of fees
 Preliminary inquiry immanent
 Court refused her permission to withdraw
Held (SCC):
 Court controls withdrawal

 If counsel states withdrawal is for “ethical reasons” court must permit withdrawal and not
inquire further
 Permit withdrawal if sufficient time before trial
 Otherwise can require counsel to continue to prevent prejudice to accused/administration of
justice, taking into account:
 Feasibility of self-rep
 Availability of other counsel
 Impact of delay
 Conduct of counsel
 History of the proceedings
Obligations on Withdrawal
 Reasonable notice
 If lawyer leaves firm, client can choose lawyer or firm (commentary)
 Minimize expense and avoid prejudice,

 Orderly transfer
 Written notice to client

 Deliver to client all papers and property
 Provide client all relevant information
 Account for funds held and render account for fees
 Co-operate with successor
 Comply with rules of court
 Obligation to deliver paper subject to lien for unpaid accounts

 Lawyer “should not enforce a lien if to do so would prejudice materially a client’s position in any
uncompleted matter”
 Co-operation with successor means providing information, but subject to confidentiality unless
information “clearly related to the matter”
--AB CC Rule 3.7-7 Comm’y 2; FLS MC Rule 3.7-9, Comm’y 2

Successor Lawyer
 Successor lawyer must ensure former lawyer has withdrawn or been discharged
 Should urge client to settle account with former lawyer`
--Commentary 1
Confidentiality
“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….
AB CC 3.3-1; FLS MC 3.3-1
When does the duty arise?

 To information “acquired in the course of the professional relationship” - Rule 3.3-1
 BUT – broad definition of professional relationship
Anyone who seeks your professional advice, even if “the lawyer may not render an account or
agree to represent that person. A solicitor and client relationship is often established without
formality” - Rule 3.3-1, Commentary 4
 “Client” – may be based on the client’s reasonable assessment of the situation
What type of information is protected?

 “ all information concerning the business and affairs of a client” – i.e., information beyond that
communicated to get legal advice
 FLS MC 3.3-1; AB CC 3.3-1
 Identity of client/fact that lawyer was retained
 FLS 3.3-1; AB CC 3.3-1 – Commentary 5
 Information from sources other than the client
 FLS 3.3-1; AB CC 3.3-1 – Commentary 2
 Information known to third parties, unless truly in public domain
 FLS 3.3-1; AB 3.3-1- Commentary 2
 Client Property and Records
 FLS 3.5-2 ; AB CC 3.5-1, Commentary 2
 Lawyer work product
What does the duty mean for the lawyer?
 A lawyer may not disclose any information about the business and affairs of a client learned
during the lawyer-client relationship unless an exception applies
 “A lawyer must not use or disclose a client’s or former client’s confidential information to the
disadvantage of the client or former client, or for the benefit of the lawyer or a third person
without the consent of the client or former client.”
 Class Note: this is a strong duty of secrecy
 The duty lasts indefinitely
--FLS MC Rule 3.3-1; AB CC Rule 3.3-1 Commentary 3
 The duty applies to everyone in the lawyer’s firm, as well as to the lawyer
The No Gossip Principle

A lawyer should avoid indiscreet conversations and other communications, even with the lawyer’s
spouse or family, about a client’s affairs and should shun any gossip about such things even though the
client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or
information about the client’s business or affairs that is overheard or recounted to the lawyer. Apart
altogether from ethical considerations or questions of good taste, indiscreet shoptalk among lawyers, if
overheard by third parties able to identify the matter being discussed, could result in prejudice to the
client. Moreover, the respect of the listener for lawyers and the legal profession will probably be
lessened. Although the rule may not apply to facts that are public knowledge, a lawyer should guard
against participating in or commenting on speculation concerning clients’ affairs or business.
AB CC Rule 3.3-1; FLS MC Rule 3.3-1, Commentary 8
What happens if you breach duty?

 Breach of duty is where you disclose confidential information without legal justification
 1- Your client can sue you
 2- You can be disciplined by the Law Society
Examples from cases

CONFIDENTIAL
 Fee information (R. v. Cunningham)

 Psychiatrist report about intentions to commit crimes that are reported to lawyer (Smith v.
Jones)
 Litigation file in civil case (R. v. McClure)
 Information about existence of videotapes (R. v. Murray)
 Videotapes of crime (R. v. Murray)
NOT CONFIDENTIAL
 Fraudulent information given to obtain legal services (Descoteaux v. Mierzwinski)
Solicitor-Client Privilege
 “Solicitor-client privilege describes the privilege that exists between a client and his or her
lawyer… At the heart of this privilege lies the concept that people must be able to speak
candidly with their lawyers and so enable their interests to be fully represented”
 “It must be as close to absolute as possible to ensure public confidence and retain relevance”
 R. v. McClure (2001) SCC
 “It is a personal and extra-patrimonial right which follows a citizen through his dealings with
others”
 Descouteaux v. Mierzwinski (1982) SCC
When does the duty arise?

 There must be a lawyer-client relationship
 Applies to all lawyer-client relationships – “class privilege”
 The relationship arises “as soon as the potential client has his first dealings with the lawyer’s
office in order to obtain legal advice”
--Descoteaux v. Mierzwinski
What type of information is protected?

 “Communications for the legitimate purpose of obtaining lawful professional advice or
assistance” (McClure)
 Information must come from the client or an agent
 Lawyer work-product – your advice to client; materials prepared for client
 Information must not be known to third parties, except
 Inadvertent disclosure
 Joint representation
 Where doctrine of implied waiver applies (e.g. communicate information to an auditor)
 Applies to communications about evidence, but not to evidence itself
What does the duty mean for the lawyer?

 The lawyer may not disclose any privileged communications unless an exception applies
 The privilege lasts forever; it survives the death of a client (Geffen v. Goodman Estate (1991)
SCC)
 The duty applies to everyone in the lawyer’s firm as well as the lawyer
What happens if you breach the duty?

 Breach of duty is where you disclose privileged information without legal justification.
 1- Your client can sue you
 2- You can be disciplined by the Law Society
Examples from the cases

 Intention to commit future crimes – if told to lawyer (Smith)
 Litigation file from civil case (McClure)
 Communication to lawyer about existence of videotapes of crime (R. v. Murray)
NOT WITHIN SOLICITOR-CLIENT PRIVILEGE
 Psychiatrist report detailing client intention to commit future crimes (Smith v. Jones)
 Videotapes of crime (R. v. Murray)
 Fee information (R. v. Cunningham)
 * Fee information in the Cunningham case is not privileged but if the fee information is
communicated for the purpose of obtaining legal advice then it is privileged.
Litigation Privilege
 Covers all information communicated for the purposes of preparing for litigation
 Relevance here is that it effectively expands the scope of information protected by solicitor-
client privilege
 Information communicated to or from third parties for litigation purposes
 Evidence prepared for the purposes of litigation (e.g., expert reports)
Examples from cases

 Communications with psychiatrist, including psychiatrist report (Smith v. Jones)
Comparisons
Similarities
Differences
Class Notes
Frank Armani’s Video
- The information that Frank had:

o Confession of his client (confidential, and privileged)
o Location of bodies (confidential and privileged)
o Saw the bodies (both)
o Took photos of bodies (both)
Reason: because all of the info is either communicated for the purpose of obtaining a legal
service, or a product of lawyers work (it all flows out of the confession)
- He offered to plea bargain with that info

Is information confidential or privileged?
- Did you learn or receive that within a lawyer-client relationship? If yes, then both
o You don’t have to have a formally established lawyer-client privilege
o The client has to reasonably think that you are their lawyer.
- Was this information created in giving legal advice? If yes, then both
- Is the information physical property? Generally speaking, physical property is not privileged
- Do 3rd parties know the information? If 3rd parties know the information, then that info will be
confidential but it won’t be privileged.
- Is there a crime involved in this communication?
o Is the communication itself is literally a crime? Then its not privileged
o Are you trying to get the lawyer to assist you to commit a crime?
 But if the client simply asked would this be legal or not, and it turned out to be a
crime…then privileged.
- Was this information prepared for the purposes of litigation?
o If yes, privileged
o Even if its prepared before the relationship starts
What are your duties in relation to C & P?
- Do not disclose
- Disclose with client consent
o Under statute?
Exclusions
Criminal Communications Exclusion – Privilege
 Communications that are themselves criminal – e.g., fraud or conspiracy

--Descoteaux v. Mierzwinski
 Communications prepared for the purpose of assisting a client to commit a crime whether or
not lawyer knew of client’s purpose
--R. v. Colvin (1970 Ont HC)
R. v. Campbell 1999 SCC

 Police reverse sting operation; unlawful
 Legal opinion sought and provided prior to reverse sting privileged
RATIO: For exclusion to apply:

 Client must knowingly pursue a criminal purpose
 Lawyer must be dupe or conspirator in the furtherance of that purpose
 If the client intends to do something criminal but the lawyer does not know, he/she is a
dupe and that is not privileged info.
Criminal communications exclusion – Confidentiality

 MC/CC do not expressly incorporate criminal communications exclusion
 Best interpretation: criminal communications also excluded from confidentiality because not
properly lawyer-client communication
 There is still debate in the case law about whether this exclusion applies to civil illegalities
 But look at 3.2-13
Lawyer response?
 Disclosure not required solely because of exclusion
 Disclosure may be required pursuant to other legal requirements
 Disclosure may be prudent to shield lawyer from liability for client’s wrongdoing
Evidence/property
 Privilege covers communications, not property
 Unless the property is solicitor work-product or a physical copy of a privileged communication
 Confidentiality includes property
Confidentiality and Privilege Exceptions

Topics:
 Future crimes exception

 Innocence at stake exception (privilege)
 Legislative exceptions
 Confidentiality-specific exceptions
Future Crimes Exception – Privilege and Confidentiality
Smith v. Jones (1999) SCC

Facts:
 Smith was charged with aggravated sexual assault.

 Lawyer tells him to go speak to a psychologist and that whatever he tells him is just as privileged
 Psychiatric assessment
 Described past crime and intended future crimes
 Guilty plea – psychiatric report not introduced
 Report: privileged – litigation privilege
Issue:
 Could the psychiatrist disclose its content?
Analysis/Ratio:
 May disclose if:

 Imminent risk
 Serious bodily harm or death (incl psychological)
 Identifiable person or group
 Assess
 Nature of threat
 Nature of the person making it
 Specificity of group to whom it is directed
 Disclose: As little as possible
 In this exception, there is NO PROTECTIONS to the person about which the disclosure was made,
unlike the innocence at stake exceptions.
Dissent (J. Major)
 Disclose only psychiatrist’s opinion of dangerousness; not Jones’ specific confessions
“Mr. Jones was only diagnosed and made aware of the possibility of treatment because
he felt secure in confiding in Dr. Smith. If that confidence is undermined, then these
individuals will not disclose the danger they pose, they will not be identified, and public
safety will suffer”
In the Code
AB CC 3.3-3; FLS MC 3.3-3
 Disclosure to protect public safety permitted if

 Reasonable grounds for belief
 Identifiable person or group
 Imminent danger of death or serious bodily harm
 Disclosure necessary to prevent death or harm
 Very exceptional
 Take into account:
 seriousness of the potential injury
 likelihood that it will occur and its imminence
 No alternative to disclosure
 How information acquired.
 How disclosure done depends on circumstances – should consult LS and get court order if
practical
 Decision should be documented in writing
--FLS MC 3.3-3; AB CC 3.3-3 - Commentaries
Notes:
 The code says “may disclose” which is permissive
 Traditionally the rule was simply about possible future “crime”….but that was changed because
of the following case:
Spalding and Zimmerman

Facts:
 There’s a car accident.

 S and Z are friends, S is at fault and Z is injured
 Z gets a medical examination of S, reveals that Spalding suffered a condition that might kill him if
not treated
 S’s lawyer never asks for it, Z’s lawyer never discloses it
 They stele
 After that, S finds out and goes to Court to get the settlement set aside
 The court agrees.
 Because of this US case, the rule now just says “any danger of bodily harm” and not necessarily a
crime.
Innocence at Stake – Privilege Only

* there’s no rule like that in the CoC
R. v. McClure 2001 SCC

Facts:
 McClure charged with sexual offences
 Sought civil litigation file of complainant
 Goal: to attack complainant credibility/motives
 Trial judge: granted access
 SCC: access ought not to be granted
Analysis/Ratio:
 Privilege can be overridden where necessary to establish innocence of 3d party
 First, Accused must establish as a threshold matter that:
1. Information not available elsewhere
2. Cannot raise reasonable doubt in any other way
 Then, The two-part test:
1. Evidentiary basis to demonstrate that a) a communication exists that b) raises

reasonable doubt
2. Trial judge examines privileged materials to see if a) communication exists that b) is

likely to raise a reasonable doubt
 NB: Communication must go to element of offence, not an “ancillary” issue
 Basically: If a communication that raises a reasonable doubt exists, and no other way for
accused to establish innocence, then evidence may be produced
 On facts:
 No evidence that complainant’s file would raise a reasonable doubt
 It didn’t go towards an element of the offence
R. v. Brown 2002 SCC

Facts:
 Brown charged with murder

 R told police b/f had confessed to murder
 B/f investigated but not charged
 Brown – sought access to files of b/f’s lawyer
 Access denied: other ways to get info
 Not necessary to establish innocence
Analysis/Ratio
 Exception applies to oral communications

 Disclosure to accused only not to Crown
 Person whose information disclosed receives:
 Use immunity
 Derivative use immunity
***Know of no cases where the exception applied
Class Notes:
 These exceptions are not available in the future harm exception discussed earlier
Statutory Override – Confidentiality and Privilege
Confidentiality:
 Lawyer must disclose confidential information where “required by law”

--FLS MC Rule 3.3-1(b); AB CC Rule 3.3-1(b)
Privilege
 Statutory interference with privilege is possible but only
 “to the extent absolutely necessary in order to achieve the ends sought by the enabling
legislation”
--Descoteaux v. Mierzwinski (1982) SCC
AND
 Statute must be constitutional (consistent with fundamental justice ONLY IF the life
liberty and security of the person is engaged)
Goodis v Ontario 2006 SCC

Facts:
 Records relating to allegations of sexual abuse of offenders sought

 Ministry claimed S-C privilege
 Disclosure sought to test privilege claim
Ratio:
 “Absolute necessity is as restrictive a test as may be formulated short of an absolute prohibition

in every case”
Held:
 Disclosure Refused
 “it is difficult to envisage circumstances where the absolute necessity test could be met if the
sole purpose of disclosure is to facilitate argument by the requester’s counsel on the question of
whether privilege is properly claimed”
LSS v Merchant (2008) SKCA

Facts:
 It’s a divorce
 Tony Merchant acts for husband, someone else acts for wife
 Wife gets a court order to ensure that any money awarded to the husband in his other claim
should be split in the divorce
 The Merchant firm defies that and pays the money out to the husband.
 The privilege info is in relation to the husband client (about the money etc..)
 Allegation of misconduct by opposing party
 LSS sought documents; Merchant claimed privilege and client refused consent
 LSS said disclosure absolutely necessary
 Held: Court agreed
Analysis/Ratio:
 LSS had authority to demand the records even though statute does not directly reference
“privilege” in allowing access to “records or other property”
 Disclosure absolutely necessary for LSS to fulfill statutory obligation to regulate the profession
Constitutional Issues
 Legislation may violate s. 7 if it infringes life, liberty and security of the person, and requires
disclosure of privileged information contrary to fundamental justice
 May violate s. 8 if a search authorized by legislation does not protect privilege
Canada (AG) v FLS 2015 SCC

Facts:
 Money-laundering legislation
 Required financial intermediaries, including lawyers, to collect information and keep records
 Permitted searches of records
 Financial intermediaries liable to prosecution if they do not comply
 Searches created “a very high risk that solicitor-client privilege will be lost”
 Protections for privilege not sufficient
 Section 8 violated
 Liberty interest at stake
 Privilege a principle of fundamental justice
 Section 7 therefore also violated
Held: Legislation unconstitutional
Note: The majority further held that Section 7 violated because state improperly interfering with
lawyer’s commitment to the client’s cause.
 The lawyer’s duty of advocacy played a role in this case.
Further Confidentiality Exceptions
Lawyer my disclose where:
 Authorized by the client (a)

 Required by law or a court (b)
 Required by the law society (c)
 Otherwise permitted by the rule (d)
--AB CC Rule 3.3-1; FLS MC 3.3-1
Other
 Consent may be inferred in some circumstances

--AB CC 3.3-1; FLS MC 3.3-1 – Commentary 9
 During joint rep
--AB CC 3.4-5(c); FLS MC 3.4-5(b)
 To extent necessary to defend civil, criminal or regulatory claim
--AB CC 3.3-4; FLS MC 3.3-4  Confidentiality
* the Murray case makes this valid for Privilege!
 To establish or collect fees
--AB CC 3.3-5; FLS MC 3.3-5
 To obtain legal and ethical advice
--AB CC 3.3-6; FLS MC 3.3-6
 To detect and resolve conflicts arising from lawyer transfer or firm merger, unless client would
be prejudiced
--AB CC 3.3-7; FLS MC 3.3-7
Other Issues – Confidentiality and Privilege

Topics:
 Confidentiality and Candour

 Duties to protect client privilege
 Duties to third party privilege holders
 Physical evidence of a crime
CONFIDENTIALITY & CANDOUR

 Lawyers have duties to correct errors
 Where inadvertently misled the court
 Where inadvertently misled opposing party
 Duties are subject to confidentiality
 If client will not consent to correcting error, lawyer must withdraw
--AB CC 5.1-5, 7.2-5; FLS MC 5.1-4;
PROTECTING PRIVILEGE
 Duty to protect client’s right to privilege and confidentiality against third parties (e.g., maintain
secure IT systems; protect privilege upon execution of search warrant)
 Duty not to use confidential information to disadvantage client or benefit lawyer/3rd party
--AB CC 3.3-2; FLS MC 3.3-2
 When withdrawing in a criminal case, do not disclose privileged information to court
DUTIES TO OTHERS
 If lawyer receives a document that was sent inadvertently, must notify sender in order to allow
the sender “to take protective measures”
--FLS MC 7.2-10, Commentary 1; AB CC 7.2-13
 A lawyer who makes improper use of opposing party’s confidential information may be removed
from the record
 So if a lawyer receives privileged info from opposing party by mistake, and then use it to
their advantage they risk being removed from the record.
--Celanese Canada Inc. v Murray Demolition Corp (2006) SCC
 Must not record a conversation with a client or another lawyer without first obtaining that
person’s consent
--FLS MC 7.2-3; AB CC 7.2-4
 Must not disclose information learned during pre-trial discoveries except in that proceeding
(implied undertaking rule)
--Juman v Doucette (2008) SCC
PHYSICAL EVIDENCE OF A CRIME
Background
 Evidence is not privileged
 Evidence is confidential, and the fact that lawyer has evidence is not disclosed unless an
exception to confidentiality applies
 Duty to protect client property and maintain its confidentiality
--AB CC 3.5-1; FLS MC 3.5-2
 Primary exception:
 Where production required by law
--AB CC 3.3-1(b); FLS MC 3.3-1(b)
Definitions
 Exculpatory: Helps to establish innocence/contradict guilt
 Partially exculpatory: Could be used helpfully, e.g., to cross-examine Crown witness but does
not in itself suggest accused’s innocence
 Inculpatory: Suggests the accused’s guilt
Dilemma
 What do you do when client gives you inculpatory evidence of a crime – a gun, a blood soaked
shirt.
 If you tell: betraying your client’s confidence
 If you don’t tell: obstruction of justice
“If [the lawyer] says, ‘Take the gun and come back after you have disposed of it,’ he has
committed a criminal offence… If he takes possession of the pistol and puts it in his desk or vault
a serious problem is created. Obviously, if he buried the pistol in his backyard he would be an
accessory after the fact. If he puts it in his desk or vault, may it not be argued that he has just as
effectively concealed it?” (G. Arthur Martin, 1970)
R. v. Murray
Facts:
 Murray received a tip from his client (Paul Bernardo) to go and check in the light fixture at the
house. He did so.
 He found tapes that were overwhelmingly inculpatory of Bernardo and Carla Homolka, but he
kept them confidential for about 14 months
 He then used them as part of the plea bargain deal with Homolka
 He was later charged with obstruction of justice for delay in revealing the tapes to the police.
Analysis/Ratio:
 Concealing the videotapes is obstruction of justice:

 Conceals crucial evidence
 Done without legal justification
 Legal justification if:
 They were privileged – they weren’t
 They had exculpatory value – “They were overwhelmingly inculpatory”
Duties
 To immediately turn over to prosecution, directly or anonymously;

 Deposit with trial judge; or
 Disclose their existence to the prosecution and prepare to do battle to retain them
Acquittal
 No mens rea due to honest but mistaken belief that evidence had exculpatory value
 Some argument to support belief in exculpatory value – that tapes would destroy Homolka’s
credibility
 Law on obligations then uncertain: “While Murray made only a token effort to find out what his
obligations were, had he done careful research he might have remained confused”
Ethical Duties
“A lawyer must not counsel or participate in the concealment, destruction or alteration of incriminating
physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.”
AB CC 5.1-10; FLS MC 5.1-2A
 MUST BE DONE USING THE HELP OF OUTSIDE COUNSEL

 Includes all evidence, whether admissible or not
 Does not include exculpatory evidence
 Not required to take or keep possession of evidence, or disclose its “mere existence”, but must
not counsel or participate in concealment, alteration or destruction
 If possess incriminating physical evidence, options include delivering evidence to prosecutor or
police (directly or anonymously), deliver to tribunal and seek direction; disclose existence to
prosecutor and argue about what to do
 Protect confidentiality as much as possible
 Use caution if copying, testing or examining evidence prior to disclosure, and do not delay
 Note: that what the client says about that evidence is still privileged and confidential, and ought
not to be disclosed.
--AB CC 5.1-10; FLS MC 5.1-2A - Commentaries
AB CC Rule 5.1-9
A lawyer must not counsel or participate in:
(a) the obtaining of evidence or information by illegal means;
(b) the falsification of evidence;
(c)the destruction of property having potential evidentiary value or the alteration of property
so as to affect its evidentiary value; or
* This rule is somewhat duplicative of the other rule. i.e. 5.1-10
AB CC 5.1-9 – Commentary
“Lawyers must uphold the law and refrain from conduct that might weaken respect for the law or
interfere with its fair administration. A lawyer must therefore seek to maintain the integrity of evidence
and its availability through appropriate procedures to opposing parties.
Paragraph (a) of Rule 5.1-9 prohibits a lawyer's involvement in the obtaining of evidence or information
in a civil or criminal matter by means that are contrary to law, including the Charter of Rights and
Freedoms and the Criminal Code.
The word "property" in paragraph (c) includes electronic information. Paragraph (c) is not intended to
interfere with the testing of evidence as contemplated by the Rules of Court.”
ADVOCACY
1. Meritorious claims
2. Duties re discovery and disclosure
3. Duties of honesty and candour
Preliminary Matters
• General duty of resolute advocacy
• Advocacy must be within the limits of the law
• Tribunal must be treated with candour, fairness, courtesy and respect
Meritorious Claims
From the Code:
• Do not institute proceedings that “although legal in themselves, are clearly motivated by
malice… and are brought solely for the purpose of injuring the other party”
--FLS MC Rule 5.1-2(a); AB CC Rule 5.1-2(a)
• In civil proceedings should “avoid and discourage the client from resorting to frivolous and
vexatious objections, attempts to gain advantage from slips or oversights not going to the
merits or tactics that will merely delay or harass the other side”
--FLS MC Rule 5.1-1, Comm’y 8;
--AB CC Rule 5.1-1, Comm’y 10; AB CC Rule 5.1-2(b)
Not to take steps that are clearly without merit.
Class Notes
So what does this all mean?
 Pure legal crapiness of the case itself (frivolous)

 The motivation for doing it (where the motives are extraneous to the legal issue)
(vexatious)
Other Risks:
• ***Solicitor-client costs against client
• ***Abuse of process lawsuit against client (an independent cause of action against the client)
• Costs against lawyer are also possible

• Only if lawyer decided to pursue case AND
• Case was “hopeless”
• Young v. Young (SCC 1993)
DCB v. ZELLERS
• Lawyer on behalf of Zellers sends demand letters to parents of shoplifters
• Parents pay demand
• Court holds no consideration because no legal basis for demand
• Re lawyer: “as a competent and responsible lawyer…[Mr. Arkin] knew or ought to have known
that the claim had no prospect whatsoever of succeeding in court and that it would be futile to
pursue it”
Note: law societies have not historically disciplined lawyers for this
Takeaway: as a lawyer, if you are pursuing a matter you know has no merit, and you know your
client is not intending to pursue it in court  you ought not to write a demand letter seeking
payment, because a lawyer in that case is simply extorting money from the other side.
 Basically a threat of legal proceedings that you don’t intend to carry out, that behavior is
improper
Discovery/Disclosure
• This is the process where lawyers engage in the preparation of evidence or witnesses, with the
other side
• These are essential
• Most civil claims get resolved/settled at this stage
• They almost always entirely depend on the ethics of the lawyers
General duties
• No assisting a client to do anything dishonest or dishonourable
--FLS MC Rule 5.1-2(b); `
• No frivolous conduct or unreasonable delay
--FLS MC Rule 5.1-1, Comm’y 8;
--AB CC Rule 5.1-1, Comm’y 10 and 5.1-2(b) and (c)
• No obstruction of cross-exam
Duties re Witnesses
• Must not counsel untruthful or misleading evidence
--FLS MC Rule 5.4-2; AB CC Rule 5.4-1; Rule 5.1-2(m)
• Must not knowingly presenting a witness in a false or misleading way
--FLS MC Rule 5.1-2(k); AB CC Rule 5.1-2(p)
• Must not make suggestions to a witness knowing them to be false

--FLS MC Rule 5.1-2(h); AB CC Rule 5.1-2(k)
• Must not needlessly abuse, hector or harass a witness
--FLS MC Rule 5.1-2(m); AB CC Rule 5.1-2(s)
• Must not needlessly inconvenience a witness
--FLS MC Rule 5.1-2(o); AB CC Rule 5.1-2(u)
Duties re Undertakings
• Strictly and scrupulously fulfill undertakings
• Do not give undertakings cannot fulfill
Class Note: an undertaking like “I will go find an answer to that question”
Other Duties
• Ensure civility and good faith to other lawyers
• If obtain privileged documents inadvertently notify the holder and do not make use of
documents.
• Note: a court might actually remove a lawyer from a case on the basis of conflict of
interest for receiving privileged info about the other party inadvertently.
--FLS MC Rule 7.2-10; `
--Celanese Canada v. Murray Demolition Corp (2006) SCC
Grossman et al v. TGH
Facts:
• Grossman’s body discovered after 12 days in air-duct shaft of hospital
• Family sues
• TGH Statement of Defence blanket denial of allegations, including that Grossman had died
• Affidavit of production listed only the hospital record and gave no information about basis for
privilege claims
• Plaintiff: sought order of better production
Law:
• Cannot use a “mere boiler-plate calculated to conceal any and all documents from inspection”
• Condemns using lawyer power for “stonewalling and improper concealment”
• Must list all documents required to be produced and give enough detail on documents for which
privilege is claimed to test claim
• Solicitor-client costs against TGH in the cause (i.e., if they lose)
• No costs against the lawyer
Note: Rules of Civil Procedure govern lawyers’ duties
Honesty and Candour

General:
• Honesty is a duty that lawyers have in all situations
• Candour is a bit narrower:
• Lawyers have to be candid with their clients in all matters related to the retainer
• But lawyers have a narrower duty of candour towards other lawyers and tribunals.
Own Client
• Neil: The duty of loyalty includes “a duty of candour with the client on matters relevant to the
retainer”
• Strother: “the thing the lawyer must not do is keep the client in the dark about matters he or
she knows to be relevant to the retainer” (para. 55)
• McKercher: “A lawyer or law firm owes a duty of candour to the client.” (para. 45)
Other Lawyers
• A lawyer must not to lie to or mislead another lawyer
• This rule expresses an obvious aspect of integrity and a fundamental principle. In no

situation, including negotiation, is a lawyer entitled to deliberately mislead a colleague.
When a lawyer (in response to a question, for example) is prevented by rules of
confidentiality from actively disclosing the truth, a falsehood is not justified. The lawyer
has other alternatives, such as declining to answer. … The concept of "misleading"
includes creating a misconception through oral or written statements, other
communications, actions or conduct, failure to act, or silence.
--AB CC Rules 7.2-2; 7.2-5
Note: i.e. you don’t have to be always candid. You don’t have to tell them everything you know,
but you cannot lie to other lawyers.
The Court/Tribunal
• General duty to treat tribunal with candour BUT not required “to assist an adversary or
advance matters harmful to the client’s case”

• Must not knowingly mislead tribunal or assist a client or witness to do so (Honesty)
--FLS MC Rule 5.1-2/5.1-4; AB CC Rule 5.1-2/5.1-5
• No false evidence, misstating law, relying on false/deceptive affidavits, suppressing what’s

required to be disclosed, assisting in fraud, crime or illegal conduct
--FLS MC Rule 5.1-2(e); AB CC Rule 5.1-2(g)
• No knowingly misstating contents of document, testimony, substance of argument, law
--FLS MC Rule 5.1-2(f); AB CC Rule 5.1-2(h)
• Not stating fact as true when you can’t prove it or ask court to take judicial notice of it
--FLS MC Rule 5.1-2(g); AB CC Rule 5.1-2(i)
• No making statements to witness recklessly or knowing them to be false
--FLS MC Rule 5.1-2(h); AB CC Rule 5.1-2(k)
• No counseling witness to give false or misleading testimony
--FLS MC Rule 5.4-2; AB CC Rule 5.4-1/5.1-2(m)
• Not presenting witness in misleading way
• Not knowingly misrepresenting client’s position on issue to be determined
--FLS MC Rule 5.1-2(l); AB CC Rule 5.1-2(r)
 “[2] It is an obvious contravention of the rule for an advocate to lie to a tribunal. The rule applies
as well, however, to an indirect misrepresentation. For example, a lawyer may not respond to a
question from a tribunal in a technically correct manner that creates a deliberately misleading
impression.
 [3] On the other hand, a lawyer is not required to inform a tribunal of facts that should have
been brought forth by opposing counsel. If it becomes apparent that the tribunal is
uninformed or misinformed on a factual matter through no fault of the lawyer or the lawyer's
client or witness, a lawyer is justified in remaining silent.”
--AB CC Rule 5.1-5, Commentaries 2 and 3
Correcting Errors
• If violate obligations re honesty/candour must disclose error and take steps to rectify it
• Duty is subject to confidentiality
• If client won’t consent; lawyer must withdraw

FLS MC Rule 5.1-4; AB CC Rule 5.1-5
[4] A lawyer has a duty to correct a misapprehension arising from an honest mistake on the part of
counsel or from perjury by the lawyer's client or witness. It may be a sufficient discharge of this
duty to merely advise the tribunal not to rely on the impugned information.
[5] The principle applies not only to statements that were untrue at the time they were made, but to
those that were true when made but have subsequently become inaccurate due to a change in
circumstance…
[6] Even if a matter has been judicially determined, the discovery of an error that may reasonably
be viewed as having materially affected the outcome may oblige a lawyer to advise opposing
counsel of the error….
AB CC Rule 5.1-5, Commentaries
Advocacy – Other Topics

 Ex-parte applications
 Presenting witnesses
 Cross-examination
 Relevant adverse authority
Ex-Parte Applications
General duties
 Ordinarily notice must be provided to all parties.
 In ex parte duty of “full and frank disclosure” to disclose all facts and law, whether helpful or not
 Note: Heightened duty of candour
FLS MC Rule 5.1-1, Comm’y 6
--AB CC Rule 5.1-1, Comm’y 8
USA v. Friedland (1996) Ont. Ct. Gen. Div.)
Presentation of Evidence
Evidence and the Duty of Candour

 Codes of conduct:
 Obligation to present evidence in a way that is honest and not misleading

 E.g. Duty not to counsel a witness to give misleading evidence
--FLS MC Rule 5.4-2; AB CC 5.4-1; 5.1-2(m)
 E.g., prohibition on permitting a witness to be presented in a false and misleading way
 “A lawyer may prepare a witness, for discovery and for appearances before tribunals, by
discussing courtroom and questioning procedures and the issues in the case, reviewing
facts, refreshing memory, and by discussing admissions, choice of words and
demeanour. It is, however, improper to direct or encourage a witness to misstate or
misrepresent the facts or to give evidence that is intentionally evasive or vague.”
--FLS MC Rule 5.4-2, Commentary 2;
Ensuring the integrity of Evidentiary Process

 Must not improperly dissuade a witness from giving evidence or advise witness to be absent
--FLS MC Rule 5.1-2(j); AB CC Rule 5.1-2(o)
 Must not pay a witness in excess of reasonable compensation
--AB CC Rule 5.1-2(l)
 May seek information (exploratory role) from potential witnesses if:
 Disclose interest in the matter
 Do not encourage witness to suppress evidence or to refrain from providing information

to other parties
 Do not improperly communicate with represented parties.
 May speak to own witness during examination-in-chief but there may be “local exceptions” to
this practice
--AB CC Rule 5.4-2, Commentary 6
 Restrictions on speaking to own witness during cross-examination
--AB CC Rule 5.4-2, Commentary 7
• Comment: So when it’s you who is talking to own witness during an examination-in-chief, must
be aware of the rules in your jurisdiction as to what is proper conduct.
• So you can speak to your own witness during examination-in-chief
• You cannot speak to own witness when that witness is under corss-examination
• But in both cases be aware of the rules in your jurisdiction
R. v. Sweezey (1987) Nfld. CA

 Lawyer counselled witness to be forgetful and evasive
 Lawyer convicted for obstruction of justice
“The Canadian justice system relies on the honesty and integrity of counsel who practice within
it…. A lawyer who attempts to obstruct justice by wilfully counselling evasive evidence not only
commits an offence contrary to … the Criminal Code but also breaches his solemn duty as an
officer of the Court”
General Motors of Canada Ltd. v. Canada (2008) TCCA

 If Crown assumes something, burden of proof on taxpayer to demonstrate falsity; if no
assumption, burden of proof on Crown
 MNR witness being cross-examined on assumptions about whether “investment management

services” were not an “exempt financial service”
 MNR had pled they made the assumption
 Under cross-examination auditor said to every question “the services were taxable”
 Eventually conceded that he had never even looked at the definition of an exempt financial
service
 Crown did not amend pleading
 Court: Counsel engaged in interference by “counseling and cuing the witness to give essentially
the same response of ‘the services are taxable’ to all of those questions” “Intrinsically
appalling”
Class Notes:
 How to prepare a witness (coaching):

 Is this question going to overtly or covertly convey to the witness what you want them to
say that is not true?
 Is there any legitimate reason for this question?
 Am I asking this question the least risky way?
Lawyer as Witnesses
 Lawyers acting as an advocate generally cannot also be a witness
 Lawyer acting as an advocate must not assert “personal opinions or beliefs or assert as
a fact anything that is properly subject to legal proof, cross-examination or challenge.
The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own
credibility at issue”
--FLS MC Rule 5.2-1;
 Courts view need for lawyer to be a witness as creating a conflict
 So if you have to appear as a witness, the court will disqualify you…your firm can act but
you cannot act anymore.
Cross-Examination
 Must not make suggestions to a witness knowing them to be false
--FLS MC RULE 5.1-2(h);
--AB CC Rule 5.1-2(k)
 Must not needlessly abuse, hector or harass a witness
--FLS MC RULE 5.1-2(m);
--AB CC Rule 5.1-2(s)
Class Notes:
1- things you are able to do
a. when asking a question, you don’t have to have an evidentiary basis, all that is required
is good faith basis….it has to go to a matter relevant and admissible (Lyttle)
2- restrictions that you cannot do
a. you may not ask questions that are irrelevant and inadmissible.
i. Opposite counsel don’t always object
ii. Prosecutors don’t always object/ask
iii. Judges don’t always react.
Which will end up tainting the trial.
b. Restrictions going to the tone. Can’t be sarcastic, demeaning, etc…R&R case
Why do we care about that?
 basic human decency
 the point of cross-examination is to test the veracity of the witnesses testimony.
o But we are very bad at finding out who’s telling the truth
o So letting this kind of questioning will undermine the process.
 The line is contextual (case-by-case)
 also look at rule 5.4-1
R. v. Lyttle (2004) SCC

 Lawyer for accused in assault case
 Wanted to cross-examine police officers about whether victim had been beaten because of drug
debt and was naming Lyttle to shield real perpetrators
 Trial judge: could only cross-examine on this if had “substantive evidence” of “drug debt” theory
 SCC:
 Cross-examination “jealously protected and broadly construed”
 Questions must be relevant
 Lawyer may not harass, misrepresent, be repetitive, or ask questions “whose prejudicial effect
outweighs their probative value”
 Must have a “good faith basis for putting the question”
 Can rely on “unproven assumptions and innuendo”
Takeaway: So the bottom line: you have a broad latitude, you can rely on things that are just
innuendo, but you cannot do:
• Be repetitive
• As prohibited things (above)
• You must have a good faith basis for putting the questions forward
R. v. R (A.J.) (1994) ONCA

 Allegation of sexual assault of mother and daughter by recently discovered birth
grandfather/father
 Accused cross-examined for 141 pages
 “incredible”
 Do you want “the jury to believe that one too”
 “gee, I guess everybody would react the way you did”
 “your victim”
ONCA:
 Accused prejudiced and trial fairness undermined
 Crown must be especially careful where “allegations are particularly sordid, the complainants
particularly sympathetic and the accused particularly disreputable”
 “No counsel can abuse any witness. This self-evident interdiction applies with particular force to
Crown counsel engaged in the cross-examination of an accused”
Relevant Adverse Authority
Ethical duty to disclose relevant adverse authority

 Lawyer may not deliberately refrain from disclosing binding adverse authority that the lawyer
considers to be directly on point and that has not been mentioned by another party
--FLS MC Rule 5.1-2(h);
--AB CC Rule 5.1-2(n) (“relevant adverse authority”)
 AB: “A decision is relevant where it refers to any point of law on which the case in question
might turn.”
--AB CC Rule 5.1-2 Commy’2
GMAC v. Isaac Estate (1992) (Funduk)

 Alberta law: seize collateral or sue on debt. Can’t do both.
 Case where family voluntarily surrendered car. Could GMAC sell and sue?
 Case with same facts saying no, GMAC could not
 Not cited by GMAC – although GMAC was party to earlier decision, same lawyer had acted, and
same court had made decision.
Funduk:
 Counsel has duty to bring forward relevant adverse authority
 Includes all cases “decided within the judicial hierarchy”
 Obligation to do research to find cases on point for the legal issue
 Summary judgment for defendants and solicitor-client costs against plaintiff
Lawyer Speech
 Public Statements
 General Duty of civility
 Criticism of Other Lawyers
 Criticizing Judges and the Legal System
 Policy Issues
Public Statements
From Code:
 May communicate to the media and make public appearances and statements
◦ AB CC Rule 7.5-1; FLS MC Rule 7.5-1
 Doing so may be required in order to “properly serve the client”
◦ FLS MC Rule 7.5-1/AB Rule 7.5-1, Commentary 4
 Statements must be in client’s best interests and within scope of the retainer
◦ AB CC Rule 7.5-1/FLS MC Rule 7.5-1, Comm’y 2
 Must respect client confidentiality
 Cannot be for the purpose of publicizing or promoting the lawyer
◦ AB CC Rule 7.5-1/FLC MC Rule 7.5-1, Comm’y 3
 Cannot be defamatory (outside of court)
◦ Hill v. Church of Scientology (1995) SCC
◦ But they can enjoy the defence of qualified privilege.
 Cannot prejudice the legal proceedings about which they were made
◦ For example: the lawyer would state “no jury would convict this man”
◦ AB CC Rule 7.5-2; FLS MC Rule 7.5-2; sub-judice principle
Cases
 Law Society of BC v. McCormick (2015) LSBC
◦ Lawyer suspended for 45 days for public comments criticizing prior client for conduct of
matter on which lawyer had acted; breach of loyalty and confidentiality
 Campbell v. Jones (2002) NSCA
◦ Lawyers successful in defending defamation suit for criticism of police officers under
doctrine of qualified privilege
General Duty of Civility
From Code:
 General duty to be “courteous, civil, and act in good faith with all persons with whom the
lawyer has dealings”
 Service to clients must be “competent, timely, conscientious, diligent, efficient and civil”
 In advocacy must treat tribunal with “courtesy”

 Prohibits “consistent pattern of rude, provocative or disruptive conduct”
 AB CC Rule 5.1-5/FLS MC Rule 5.1-5 Commentary 1
Notes:
• The duty of civility is not the same as contempt of court (Commy’1)
• But may be revealed by a consistent pattern of rude conduct even if it falls short of contempt of
court.
Cases
 Lawyers have been disciplined for incivility to:

◦ Own client
◦ Self-represented litigants
◦ Social workers
◦ Police officer
◦ Mediators
◦ Insurance adjusters
◦ Opposing party
**Many of these cases involve bullying behaviour
**Civility discipline relatively rare
Criticism of other Lawyers

From Code:
 General duties of courtesy/civility
 Rule against taking advantage of “slips or oversights” of other side
◦ AB CC Rule 5.1-1, Comm’y 10; FLS MC Rule 5.1-1, Comm’y 8
 May not make “ill-considered or uninformed” criticisms
◦ AB CC Rule 7.2-1/FLS MC Rule 7.2-1, Comm’y 3.
LSBC v. Laarakker (2011) LSBC

Letter
 “I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to
the only use for which it might be suitable, however uncomfortably”
 “Save the postage in future and become a real lawyer instead!”
 “Surely bullying people into paying some small amount of money is not what you went into law
form”
Blog post
 “I hate these sleazy operators”
Held:
 Duty of civility applies to all opposing counsel, “regardless of one’s feelings about them”
 Laarakker’s feelings did not justify the letter or blog post
 Even if the lawyer was a “rogue lawyer” vigilante justice not appropriate
 Outcome: $1500 fine + $1500 costs
Other cases
 Other lawyer wrote “rambling letters”
 Accusing other lawyer of “fraud”
 Calling lawyer “biased, incompetent and a liar” to a third party
 Calling a lawyer “clueless”
 Making anti-semitic comments about another lawyer
 Calling another lawyer stupid and telling her to “f*** off”
Law society of Upper Canada v. Groia 2016 ONCA 471

Facts:
 In court comments re prosecutor included:
◦ Trying to “win at all costs”
◦ “lazy”
◦ Had not “done their job”
◦ “stuck their head in the sand”
◦ “conviction filter”
◦ “government’s case has more holes in it than a lobster trap in Nova Scotia”
 Prosecutor rebuked for sarcasm
 Prosecutor censured for suggesting court’s rulings “presumptively wrong and unfair”
 Case was hard fought and contentious
 Groia’s client acquitted
 No complaint against Groia to Law Society; Law Society initiated own case
Judicial history:
 Hearing: Found guilty of professional misconduct. $246,960.53 in costs and 2-month suspension
 Appeal panel: upheld finding for different reasons; reduced suspension to one month;
 Divisional Court: upheld decision but different reasons.
 ONCA: upheld decision 2-1; largely restored appeal panel reasons
Majority:
 The Law Society may discipline lawyers for in-court incivility;
 Incivility “contextual and fact-specific”
 Definition: “potent displays of disrespect for participants in the justice system, beyond mere
rudeness or discourtesy” (124, citing Doré)
 Particularly bad:
 Impugning the integrity of the opposing counsel
 Allegations of prosecutorial misconduct
 Unless in good faith and with a reasonable basis.
 Below professional and public standard of behaviour
 Zealous advocacy consistent with civility
 “isolated lapse of judgment or occasional disparaging comment” should not trigger discipline
(140)
Dissent:
 Law societies must give weight to role of the trial judge
 The lawyer’s incivility must have affected trial fairness
 In this case trial judge had dealt with Groia’s conduct, and Groia had responded appropriately to
the trial judge
Criticizing judges and the legal system

From code:
 Legal decisions properly subject to criticism;
 Must not be petty or intemperate, and lawyers should support tribunals subject to unjust
criticism
◦ AB CC Rule 5.6-/FLS MC Rule 5.6-1, Comm’y 3
• Note: An important part of the lawyer’s role is to hold the judiciary to account
Doré v Barreau du Quebec , 2012 SCC 12
 Extraordinarily rude letter to judge who had been very rude to Doré; Judge later reprimanded
 Doré guilty of professional misconduct; SCC agreed
 Incivility “potent displays of disrespect for the participants in the justice system, beyond mere
rudeness or discourtesy”
 Fact dependent and discretionary
 Must argue with dignified restraint
 Regulators must balance “the fundamental importance of open, and even forceful, criticism of
our public institutions with the need to ensure civility in the profession.”
Policy issues
Positives:
 Identifies lawyers with broader issues
 Severe incivility may undermine trial fairness
 Prevents bullying behaviour
 Respectful work environment for lawyers
Negatives:
 Inhibits zeal
 Valorizes a particular model of the good lawyer
 Disincentive for reporting other lawyers
 Disincentive for difficult cases
 Distracts from other ethical issues

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Contents

Regulation of Lawyers ................................................................................................................................... 7

LSA CC 7.1-3; 7.1-4 and Commentaries

Other Lawyer Regulation

 Ineffective assistance of counsel

LSA CC 3.3-2; 3.4-12–3.4-14; 7.3-1; 7.3-2 and Commentaries

The Lawyer’s Duty (From judicial Decisions)

--Strother v. 3464920 Canada Inc. 2007 SCC 24

The Lawyer’s Duty (From Code)

What is the concern?

How does the law of conflicts work (enforcement)?

Identifying conflicts: The Substantial Risk Test (GENERAL RULE)

What is a “substantial risk”?

Identifying conflicts: The Bright Line Test

Identifying conflicts: Improper advantage taking

Identifying conflicts: Protecting the Administration of Justice

Curing conflicts with informed consent

When will a lawyer be disqualified?

 To maintain the “repute of the administration of justice”

--CNR Co. v. McKercher LLP 2013 SCC 39

When do these conflicts arise?

 “personal financial interest” in client’s affairs or in the matter

Court Rules : Case Law: Fiduciary Duties

Fiduciary Duty Cases

 Written and narrated by Greenspan

Administration of Justice Cases

Confidential Information Cases

LSUC v. Barnett (1997)

Current Client-Former Client Conflicts

 Conflicts rules maintain integrity of legal system

When are two matters RELATED?

When are two matters CONFIDENTIAL?

Former clients – General Protection of Confidentiality

Former clients - transferring Lawyers

Ontario v Chartis Insurance (2017) ONCA

Current Client-Current Client Conflicts

Joint Representation – Disputes

Joint Representation – Conflicts

 Can act for both sides of a conflict only if:

Roth Estate v Juschka (2016) ONCA

Concurrent representation – unrelated matters

R. v. Neil (2002) SCC

Strother v. 36464920 Canada Inc. (2007) SCC

Advertising and Solicitation

LSA CC Rules 4.1-1 – 4.4-1 and Commentaries

Advertising and Marketing

So the rule was set as follows:

Examples of improper marketing

Examples from Sex Crime Lawyers (Professor Elaine Craig paper)

Offering Legal Services – Restrictions

Chapter2, Rules 3.1-1, 3.1-2, 3.2-1, 3.2-2 and Commentaries

 Generally the courts are hesitant to say this lawyer is incompetent

 Entering into a retainer in an area they don’t know very well

LSA v. Syed (1994)

Private Law (Contract and Negligence)

McClenahan v Clarke (2004; ON SCJ)

Criminal Law: Ineffective Assistance

R. v. Fraser (2011) NSCA

Advising and Instructions

Summary of Duties related to Advising

Competency Requirements for Advising

Candour Requirement for Advising

Compliance with the law requirement for Advising