Cases for Exam brief :

R v Cunningham [2010] SCC 10 FACTS:

ISSUE:

• Whether, in a criminal matter, a court has the authority to refuse to grant defence

counsel’s request to w/draw b/c accused has not complied w/ financial terms of

retainer

HELD:

• The appeal s/b allowed

• A territorial court has jurisdiction to refuse to grant a request to w/draw

• REASONING:

There are two lines of prov and territorial appellate court reasoning on this issue

C, a criminal defence lawyer employed by Yukon Legal Aid, represented an

accused charged w/ sexual offences against a young child

Prior to the preliminary inquiry, Legal Aid informed the accused that failure to

update his financial information would result in the suspension of his legal aid

funding

The accused failed to respond to the request and Legal Aid informed him that C

was no longer authorized to represent him

C brought an application to the Territorial Court of Yukon to w/draw as counsel of

record solely b/c of the suspended funding

However, C indicated that she was willing to represent the accused if funding were

reinstated

The Territorial Court refused her application

The Supreme Court of the Yukon Territory dismissed C’s application for an order

in the nature of certiorari seeking to quash the Territorial Court’s order, holding

that the Territorial Court did not exceed its jurisdiction

The CA allowed C’s appeal on the basis that the Territorial Court had no discretion

Page 1 of 57
to refuse C’s application to w/draw

• Where counsel seeks untimely w/drawal for non-payment of fees, the court m/ weigh the relevant
factors and determine whether w/drawal would cause serious harm to the administration of justice

Whistleblowing – working up the ladder

• After the Enron scandal, it became clear that a number of lawyers knew and covered up the
fraud 


• The US gov’t introduced Sarbannes-Oxley Act granting greater authority to the SEC 


• The SEC introduced “tip the ladder” reporting and the Model Code has adopted the same
idea in Rule 3.2-8 


• The section instructs the lawyer working an organization to go up the chain of command to
report the dishonesty or fraud 


1) The BC and Yukon Courts of Appeal have determined that a court has

no authority to prevent criminal defence counsel from w/drawing for

non-payment of legal fees

2) The Alberta, Saskatchewan, Manitoba, Ontario, and Quebec Courts of

Appeal have taken the opposite position — a court may refuse counsel’s

request to w/draw

Trial courts in New Brunswick and Newfoundland have also followed this

line of authority

• The BC and Yukon position stems from the BC Supreme Court decision in Re Leask and
Cronin (1985), 18 C.C.C. (3d) 315 


• In Leask, the court, on an application for an order in the nature of prohibition, found that a
prov court judge has no right in law to order counsel to continue to represent an accused 


• McKay J. found that this conclusion recognized the role of a strong and 


independent bar and that the role of disciplining lawyers is vested in the law

societies, not the court

Page 2 of 57
 • He found that the relationship b/t a solicitor and client is a contractual one and 

that once the client breaches the contract, the solicitor is entitled to repudiate and 

bring the contract to an end 


• Although lawyers may ask for leave, McKay J. found this was a matter of 

“politeness and courtesy”, the court having no discretionary power to refuse 


In contrast, the Alberta, Saskatchewan, Manitoba, Ontario and Quebec Courts of

Appeal as well as their trial courts, and trial courts in New Brunswick and

Newfoundland, have all accepted that a court has the authority to refuse counsel’s

application for w/drawal

In C. (D.D.), the Alberta CA determined that in addition to counsel’s contractual

obligations to the client, a lawyer is also an officer of the court

It is in this capacity that counsel owes a duty to the court to “attend before a judge

when requested” and “not to walk out on a client in the middle of a trial”

So long as counsel has not expressed that he or she appears on a limited retainer,

the court may refuse to grant a request to w/draw

The Alberta CA appears to recognize two limitations to the court’s discretion

First, the court m/ grant a w/drawal request when there is a breakdown in the

solicitor-client relationship

Second, where counsel seeks to w/draw for non-payment of fees, the court may

permit w/drawal after considering harm to the Crown’s case, inconvenience to

witnesses, and whether the allotted court time could be filled w/ other business

I conclude that a court does have the authority to refuse criminal defence counsel’s

request to w/draw for non-payment of legal fees

• In sum, a court has the authority to control its own process and to supervise counsel who are
officers of the court 


• The Supreme Court of the Yukon Territory correctly concluded that the Territorial Court had
the jurisdiction to refuse to grant counsel’s request to w/draw 


• This jurisdiction, however, s/b exercised exceedingly sparingly 


Page 3 of 57
 • It is not appropriate for the court to refuse w/drawal where an adjournment will 

not be necessary, nor where counsel seeks w/drawal for ethical reasons 


Celanese Case :

In a recent decision, the Supreme Court of

Canada has ruled that counsel who have been
given access to another party''s confidential
documents must also take steps to uphold their
solicitor-client privilege even if there''s no
solicitor-client relationship.

In Celanese Canada Inc. v. Murray Demolition

Corp., Celanese had sued Canadian Bearings
Ltd. for alleged industrial espionage, after which
a motions judge granted an Anton Piller order
against Canadian Bearings. The main case,
which doesn't directly affect this appeal, revolves
around Celanese suing Canadian Bearings,
among others, for allegedly stealing technology
discovered during the demolition of its Edmonton
vinyl acetate plant and making unauthorized use
of it in the construction of a vinyl acetate facility in
Iran.

Page 4 of 57
When the Anton Piller order was being carried
out, it was alleged that a sealed envelope was
opened, and a CD that turned out to contain
privileged emails was copied onto the computer
of Celanese's lawyers, Cassels Brock &
Blackwell. The decision says that Celanese's
U.S. counsel, Kasowitz Benson Torres &
Friedman, also received a copy of the CD.

After the initial incident, Canadian Bearings's

counsel, Borden Ladner Gervais LLP, brought a
motion to prohibit the two firms from acting for
Celanese. It was dismissed by the motions judge.
Canadian Bearings appealed to the Divisional
Court, which allowed the appeal and ordered that
Cassels Brock and Kasowitz be removed.
Celanese, Cassels Brock, and Kasowitz
appealed to the Ontario Court of Appeal, which
allowed the appeal, arguing that neither of the
courts had applied the correct test for removal of
counsel.

The case ended up before the Supreme Court in

order to determine the proper test for removal of
counsel and "which of the parties bears the onus
to show (or rebut) the prejudice arising from
disclosure of solicitor and client privileged
documents."
Page 5 of 57
"This appeal thus presents a clash between two
competing values -- solicitor-client privilege and
the right to select counsel of one's choice. The
conflict must be resolved, it seems to me, on the
basis that no one has the right to be represented
by counsel who has had access to relevant
solicitor-client confidences in circumstances
where such access ought to have been
anticipated and, without great difficulty, avoided,"
noted Supreme Court Justice Ian Binnie in his
July 27 decision.

Binnie added, however, that he agrees with the

lower courts that "if a remedy short of removing
the searching solicitors will cure the problem, it
should be considered." He added that there is no
such thing as automatic disqualification.

In the decision, it was noted that the Advocates'

Society and the Canadian Bar Association, which
acted as interveners in the case, had suggested
that several factors should be considered before
determining whether to remove solicitors from
this type of case. These include how the
documents came into the possession of the
plaintiff or its counsel, what the plaintiff and its
counsel did when they recognized the documents
Page 6 of 57
were potentially subject to solicitor-client
privilege, and the extent of review made of the
privileged material.

Other suggestions were that the court should

consider the contents of the solicitor-client
communications and the degree to which they
are prejudicial, the stage of the litigation and the
potential effectiveness of a firewall or other
precautionary steps to avoid mischief.

Binnie noted that neither firm in this case set out

to gain access to privileged material.

"The disclosure of solicitor-client confidences

came about not by egregious misconduct, but
through a combination of carelessness,
overzealousness, a lack of appreciation of the
potential dangers of an Anton Piller order, and a
failure to focus on its limited purpose, namely the
preservation of relevant evidence."
The court ruled that the appeal be allowed and
that Cassels Brock be removed as solicitors for
Celanese Canada Inc.

In addition to setting out a framework for

determining whether to remove solicitors from
this type of case, the court also emphasized that
Page 7 of 57
the onus is on the searching firm to prove that
"no use of confidential information would occur".

Paul Michell, a partner at Toronto's Lax

O'Sullivan Scott LLP who represented the
Advocates' Society, said "much of the focus of
this case was about establishing procedural
protections to ensure that in obtaining and
executing an Anton Piller order, that as much is
done as is reasonably possible to make sure that
you don't come into possession of another party's
solicitor-client privilege material."

As Binnie noted, "putting the onus on the party in

receipt of the confidential information rather than
on the party being searched increases the
incentive on its part to take care to ensure that
privileged information is not reviewed in the first
place.

"Nevertheless, all parties recognize that an Anton

Piller order provides no authority whatsoever for
access to a defendant's privileged documents,"
he said.

Derek Leschinsky of Osler Hoskin & Harcourt

LLP, who represented the CBA, said that "the
CBA sought protection for privilege in the
Page 8 of 57
execution of Anton Piller orders, because there
was a lack of this, a lack of clear standards in the
jurisprudence before this. There was a series of
different cases, but no clear global framework,
and I think that has now been provided."

Mahmud Jamal, who also represented the CBA,

added that "it affirms, in unequivocal terms, that
the protection of solicitor-client privilege is a
matter of high importance.

"The court also, for the first time, shares that

when the party receives privileged information of
another, it has a duty to return the privileged
information, and to advise the party of the extent
of review made," he said.

"The CBA was very pleased that the court

adopted that, because otherwise what happens
is material is returned, and there is no ability of
the courts or the other side to know what was
reviewed and what was not reviewed and what
the information contains," he said.

The court put the onus squarely on the party that

receives privileged information to return it, and
explain the extent of the review made, said
Jamal. "That is already an ethical obligation in a
Page 9 of 57
number of provinces and what Justice Binnie
does in the decision is adopt the CBA's position
that that should be a national legal standard,
effectively."

Edgar Schmit case :

Former Department of Justice lawyer Edgar Schmidt has lost his

bid to sue the ministry that once employed him for failing to report to
Parliament whether new laws might be so inconsistent with the
Charter of Rights and Freedoms they would trigger constitutional
challenges.
Under a 1985 law, the justice minister has a duty to inform the
House of Commons if any draft or proposed bill violates guaranteed
rights. The law might as well not exist: no justice minister has
reported a proposed government bill for its possible
unconstitutionality in 31 years.
The Federal Court of Canada ruled against Schmidt Tuesday,
saying it was satisfied with the government’s standard of “credible
argument” — that a proposed bill need be reported only if no
credible argument can be made to support it.
Schmidt had argued that standard could apply to a bill that had only
a five per cent chance of success. The more fitting standard, he
said, ought to be if a draft bill is “more likely than not to be
inconsistent with guaranteed rights.”
Federal Court Justice Simon Noël noted lawyers for the government
argued in court, “If Parliament wants to change the standards, it can
enact legislation doing so. It has not.”
Schmidt was termed a whistleblower because he complained to his
department over the course of a decade over what he claimed was
the minister’s failure to report proposed laws that might not pass
constitutional vetting. When he filed a statement of claim against his
boss three years ago, he was suspended without pay for six
months. He chose to retire early on a reduced pension.
Page 10 of 57
Schmidt, currently living in Val-des-Mont, Quebec, claimed in his
submission to the court the lack of scrutiny by the minister meant, “it
will virtually always be up to the citizen to discover and challenge
legislation the doesn’t conform to the Bill of Rights or the Charter.”
But Noël disagreed. The judge found that Parliament also has a
duty to determine if a proposed bill is consistent with the Charter as
it studies the legislation in committee and receives advice from legal
experts. As a side-comment, Noël noted, it is “unlikely and perhaps
unrealistic” for a government to declare openly its bill violates the
Charter. “The Minister of Justice is not Atlas carrying the weight of
guaranteed rights on her shoulders,” he wrote in his decision.
The previous Harper government was often criticized for introducing
bills that seemed to skirt rights guaranteed by the Charter when it
passed a series of “tough on crime” laws.
The Supreme Court of Canada overturned mandatory minimum
sentences for gun possession and the Abolition of Early Parole Act.
It tossed a law passed by the former Conservative government that
said medical marijuana must be either smoked or vaporized, and
not in eaten in cookies or brownies, or rubbed on skin as a cream.
Noël calculated that of the 34 constitutional challenges to laws
passed by the Harper government, 12 of them, more than a third,
were thrown out at the top court level. But, he reasoned, in some
cases the decisions were split and some cases had a favourable
lower court decision or dissent at appeal. In the majority of the 34
challenges, the judge reasoned, “there were credible arguments in
support of the legislation … regardless of how these arguments
were ultimately treated by the Supreme Court.”
Schmidt launched his case in Federal Court in 2012. In November,
Prime Minister Justin Trudeau, in mandate letters to his ministers
that were unprecedentedly made public, told Justice Minister Jody
Wilson-Raybould that she “examine every regulation, every bill … in
order to ascertain whether any of the provisions thereof are
consistent with the Charter.”
That is the way the law is currently written and there’s no indication
whether the government intends to change it.
The Canadian Civil Liberties Association, an intervenor in Schmidt’s
case, said Wednesday it knew of no plans for an appeal. Its
fundamental freedoms program director, Cara Zwibel, issued a
Page 11 of 57
statement, saying, “The decision highlights the need for reform if we
want parliamentarians to truly and meaningfully assess the
constitutional implications of the laws they are passing.”
Zwibel also wrote that because of soliciter-client privilege, the court
could not look at how the standard of credible argument had been
applied, “even though we know that laws with very questionable
constitutional status were introduced and passed in recent years.”

Law Society of BC vs Laarker

A B.C. lawyer who launched a verbal attack on

an Ontario counterpart for sending demand
letters to the parents of alleged shoplifters has
been fined $1,500 for his outburst by the Law
Society of British Columbia.

Gerry Laarakker, a sole practitioner in Vernon,

B.C., went on the offensive after a client came to
him with a $500 demand letter from Toronto
lawyer Patrick Martin, writing on behalf of the
Hudson’s Bay Co.

The letter warned the woman, whose daughter

was involved in an alleged shoplifting incident,
that she could be on the hook for an even higher
claim for damages if she didn’t pay the
settlement amount and HBC sued her for actual
recovery costs associated with the incident,
including detection, apprehension, and recovery
of goods.
Page 12 of 57
In a fax rebuffing the settlement offer, Laarakker
accused Martin of being involved in a “scam.”

“Save the postage in the future and become a

real lawyer instead! You must have harboured
dreams of being a good lawyer at one point.
Surely bullying people into paying some small
amount of money is not what you went into law
for. But then again, someone has to be at the
bottom of the class,” he wrote.

In addition, Laarakker left a comment on an

Internet discussion thread about a similar letter
from Martin.

“This guy is the kind of lawyer that gives lawyers

a bad name,” Laarakker wrote. “He is relying on
intimidation and blackmail to get the lousy $500.
Don’t pay him. I hate these sleazy operators.”

Following a complaint from Martin, an LSBC

panel found Laarakker guilty of misconduct. In an
interview with Law Times last October, the lawyer
said he regretted his use of “undiplomatic
language” in correspondence with Martin, but
stood by criticism of his practice.
Page 13 of 57
“I’ve been a lawyer for many years and I’ve never
heard of this even going to Small Claims Court. I
feel the public is being unduly intimidated. I feel
perhaps my friends in Ontario are wrapping
themselves in their legal robes and taking
advantage of the naive and the embarrassed,”
said Laarakker.

He said he was particularly upset because his

client’s daughter suffered from an eating
disorder, a problem that has touched his own
family.

Now, in a Jan. 10 decision,  the panel has

ordered him to pay a $1,500 fine. The panel said
the 67-year-old’s offence was mitigated by his
clean disciplinary record and his apology to
Martin after the misconduct finding. It also took
into account his personal connection with his
client.

“He felt personally offended by the steps that

were being taken by the opposing lawyer. This
personal connection increased the ire with which
Mr. Laarakker responded to the other lawyer’s
correspondence. While these facts do not justify
his actions, they do speak to the reason that he
Page 14 of 57
took the steps that he did,” reads the panel’s
decision.

Laarakker was also ordered to pay the law

society $3,000 in costs for the two-day hearing.
Trinity Western v. Law Society of Upper Canada.

In the recent Supreme Court of Canada decision of Trinity Western University v Law Society
of Upper Canada, the Court was tasked with determining the scope of religious freedom
protected by the Charter of Rights and Freedoms (“Charter”) within administrative decision-
making.

Trinity Western University (“TWU”) is an evangelical Christian postsecondary institution

that requires students and faculty to comply with the Community Covenant Agreement
(“CCA”). The CCA prohibits students and faculty to engage in sexual relations outside of
marriage and with the same sex. This covenant not only applies to TWU students on-
compass but in their daily lives, as well.

TWU proposed to build a law school in Ontario and in British Columbia. In order to obtain
the necessary accreditation in Ontario, TWU applied to the Law Society of Upper Canada
(“LSUC”) (now the Law Society of Ontario). The Law Society of Upper Canada is the
regulatory body that oversees the licencing process for lawyers, as well as, the requirements
to maintain a licence to practice law in Ontario. The LSUC voted not to accredit TWU.
TWU applied for judicial review on the grounds that the LSUC’s decision was a breach of
their section 2(a) freedom protected by the Charter. Subject to reasonable limits, the Charter
protects freedom conscience and freedom from state interference.

The LSUC denied TWU’s accreditation on the grounds that the creation of an evangelical
Christian law school could create barriers for LGBTQ students and others from entering the
legal profession. Such barriers, would harm the legal profession as a whole by limiting
diversity and lowering public perceptions of lawyers. The LSUC decision did not interfere
with evangelical Christian students from attending law school, but merely prevents an
educational institution from providing a legal education to that group solely.

The Divisional Court held that the LSUC had given a fair, proportionate balance to the
Charter rights engaged. LSUC has an institutional public interest mandate. Based on the
current legal framework, LSUC’s decision was reasonably as it correctly balanced the
freedom of religion and equality interests. The TWU appealed this decision to the Ontario
Court of Appeal.

Page 15 of 57
The Ontario Court of Appeal dismissed TWU’s appeal confirming that LSUC’s decision was
“a proportionate balance between its statutory objectives and the limit on religious
freedom.” TWU appealed once more to the Supreme Court of Canada.

The majority decision of the Supreme Court of Canada upheld the LSUC’s decision not to
accredit TWU. The LSUC, as gatekeeper to the legal profession, has an important role in
eliminating inequitable barriers that may discourage or limit applicants to law school. The
Supreme Court held that the LSUC was entitled to find that the creation of the TWU law
school could harm the legal profession by creating barriers for LGBTQ law students and for
many others. In order to meet its legislative mandate, the LSUC is required to consider
admission requirements that may impose inequitable barriers and undermine public
confidence in its ability to regulate in the public interest.
Regardless of the Courts finding that the LSUC’s decision was reasonable, the Court
continued and provided an analysis on the freedom of religion.

To engage the freedom of religion the party claiming the right must show:
1. he or she has a sincere belief or practice that has a nexus with religion; and
2. that the impugned state conduct interferes, in a manner that is more than trivial or
insubstantial, with his or her ability to act in accordance with that practice or belief.
The Court found that the LSUC’s decision was a limit on TWU’s religious freedom.
However, the issue remained whether the limitation was “more than trivial.” The Court
framed the issue as “whether the administrative decision-maker has furthered his or her
statutory mandate in a manner that is proportionate to the resulting limitation on the Charter
right.”

The Court found that the infringement is minor because a mandatory requirement is not an
absolute requirement for studying law in a Christian environment, and attending a Christian
law school, though may be preferred, is not necessary to practice law. Limits on religious
freedom are unavoidable where institutions are trying to fulfill their statutory mandate in a
multicultural and democratic society. As such, the LSUC’s decision not to accredit was a
reasonable limit on protecting individual beliefs and practices. The consequence of this
decision is that by preventing the accreditation of an evangelical Christian law school, the
rights of students wanting to attend such an institution consistent with their beliefs will be
limited as well.

In the dissenting opinion, the Honourable Supreme Court Justices Côté and Brown held that
the decision not to accredit TWU was a “profound interference with the TWU community’s
freedom of religion.” The Court found that the LSUC’s only role is to ensure that individual
applications meet the proper requirements for accreditation into the profession. Therefore,
the LSUC should not have considered the private educational institutions admission criteria
in their decision-making process. Courts should not be involved in issues of public
perception, and by upholding the LSUC’s decision the Charter has been used to force
conformity and sacrifice difference of beliefs.

Page 16 of 57
The Court vehemently disagreed with the majority’s belief that infringement on the freedom
of religion arises out of the multicultural and democratic society. The dissent stated that the
majority’s statement is “rooted in another equally fundamental misconception” that even
where someone else’s freedom of religion is not infringed, as TWU is a private institution
and cannot infringe Charter rights, the private actor’s religious freedom will be limited
because of the potential impact on others. The TWU is not bound by the Charter and
therefore, the LSUC and majority decision should not place the burden on TWU to uphold
the freedom of religion in its dealings with students.

The majority’s decision in this case demonstrates the significant deference that Courts
provide administrative decision-making bodies. Despite the finding that the LSUC’s
decision limited religious freedom, the majority, pursuant to the Doré framework, was
required to balance the statutory mandate of the administrative body with the right
infringed to determine whether the limit is “more than trivial.” The majority’s decision held
that the LSUC’s statutory mandate over the legal profession was broad, while the dissent
felt the LSUC’s decision had overreached their authority. By framing LSUC’s statutory
mandate over the entire profession as a whole, including barriers that may limit applicants
to law school, the majority found the LSUC is entitled to deference.
Daniel & Partners LLP has extensive experience in judicial review proceedings. Please
contact one of our experienced administrative law lawyers to see what we can do for you.

SUPREME COURT OF CANADA Case in Brief:

Groia v. Law Society of Upper Canada 2018 SCC 27 | Judgment of June 1, 2018 |

On appeal from the Court of Appeal for Ontario A lawyer’s uncivil behaviour in court may
not amount to professional misconduct if it was based on a mistaken understanding of the
law, the Supreme Court has ruled. All the circumstances must be taken into account. Joseph
Groia was the lawyer for John Felderhof, a Bre-X mining executive charged with insider
trading and other crimes. The trial was tense, marked by personal attacks and sarcastic
remarks. During the first half of the trial, Mr. Groia believed prosecutors were acting
wrongly. He accused them—repeatedly and in harsh language—of abuse of process. Mr.
Groia was actually wrong about the law, but the judge did not correct him. Lawyers have to
follow many ethical rules. In Ontario, these are enforced by the Law Society of Ontario
(formerly known as the Law Society of Upper Canada). The duty to practice law with
“civility” is only one of them. Civility is not just about being polite; when lawyers attack
each other personally, it weakens the justice system. Personal attacks distract from the
parties’ dispute and makes it harder for lawyers to work together to find solutions. The Law
Society can charge lawyers who act uncivilly with professional misconduct. The Law
Society began an investigation into Mr. Groia in 2004 for his behaviour toward the
prosecution, even though no one complained. He was charged with professional misconduct
in 2009 and found guilty by a Law Society Hearing Panel in 2012. The Law Society Appeal
Panel confirmed this in 2013. Mr. Groia’s licence to practice law was suspended for a month
and he was ordered to pay $200,000 in costs. He disagreed with the decision and asked the
Page 17 of 57
courts to review it. Both the Divisional Court and the Court of Appeal upheld the Law
Society Appeal Panel’s decision. Justice Michael Moldaver, writing for the majority at the
Supreme Court, ruled for Mr. Groia. In his view, the Law Society’s decision was
unreasonable. He said that Mr. Groia had a reasonable basis to accuse the prosecution of
misconduct, even though the allegations stemmed from his mistaken understanding of the
law. The prosecutors’ conduct, the fact that the judge did not correct him, and the legal
uncertainty about how to raise the issue of abuse of process all led him to act as he did.
Justice Moldaver worried that the Law Society’s decision would make lawyers think twice
about forcefully defending their clients, for fear they could be charged with misconduct. He
also said the Law Society should pay careful attention to the legal rulings made by a trial
judge who, unlike the Law Society, saw Mr. Groia’s behaviour in person. Four judges
agreed with Justice Moldaver. Justice Suzanne Côté agreed with Justice Moldaver that the
Law Society was wrong to punish Mr. Groia. But unlike the majority, she thought that
courts should not simply accept a law society’s disciplinary decision about a lawyer’s
conduct in the courtroom. This was because letting a law society review in-court behaviour
raises concerns about the role and independence of judges. Justices Karakatsanis, Gascon,
and Rowe disagreed with Justice Moldaver on how to review the Law Society’s decision
and on the outcome. They said it was open to the Law Society to find Mr. Groia guilty of
misconduct. In their view, he had disrupted the trial and unfairly accused the other side’s
lawyers of dishonesty. They said the Law Society reasonably decided that Mr. Groia’s own
mistaken view of the law was no excuse for his bad behaviour. Lawyers have both a
professional obligation to advocate strongly for their clients and a duty to act civilly during
a trial. This case was about deciding when strong courtroom advocacy becomes incivility,
and when incivility becomes professional misconduct. The Supreme Court said that
decision-makers should look at the full situation when deciding if a line was crossed.

Blank v. Canada (Minister of Justice) brief

Facts:

In 1995, the Crown laid charges for regulatory offences against the respondent. These were
quashed, some in 1997 and the rest in 2001. In 2002, further charges were laid, but the
indictments were stayed before trial. R sued the Crown alleging, among other things, fraud.
He attempted to obtain prosecution documents from the prior proceedings, but this was
refused by the Crown claiming privilege. Granted appeal filed in SCC

Issue: Are the prosecution documents from past proceedings subject to litigation privilege?

Held: No. Appeal dismissed.

Reasoning:

Page 18 of 57
SCC acknowledges the existence of litigation privilege as a separate category of privilege in
this case. They affirm that the proper test is the dominant purpose test. Further, they affirm
that litigation privilege is temporary. Once the litigation is over, the privilege has passed.
The minister’s litigation privilege over the files has expired because R seeks files related to
proceedings that have terminated.
The purpose of litigation privilege is to create a “zone of privacy” in relation to pending or
apprehended litigation. Litigation privilege may remain if related litigation remains pending
or is reasonably contemplated. Further, litigation privilege would not protect evidence of
abuse of process or similar blameworthy conduct despite the materials otherwise being
subject to privilege.

R v. Neil :

David Lloyd Neil was accused of a series of criminal charges. In his prior job
he retained the legal services of a solicitor from an Edmonton law firm. Neil's
assistant, Helen Lambert, had hired Gregory Lazin from the same firm to
represent her in the relation to the charges. Lazin sat in on an interview with
Neil's lawyer in order to gain advantage for his client. In a second incident,
Lazin was approached by an old client of Neil named Doblanko who believed
that Neil had fabricated a divorce document. Lazin referred him to the same
police officer who was investigating Neil's other charges.
The issue was whether Lazin created a conflict of interest by assisting in
establishing the charges against Neil, when he was a past client.

Ruling of the Court

Justice Binnie, writing for the Court, dismissed the appeal. He held that the
firm owed a duty of loyalty to Neil and should not have communicated with
the other parties.
Binnie used the case as an opportunity to survey the meaning of a lawyer's
duty of loyalty. He takes a strong stance, arguing that the duty is an essential
to the integrity of the profession and the administration of justice. Loyalty
promotes effective legal representation.

Impact
While the "bright-line rule" stated in Neil was obiter to the case at hand, in
2007 it became the ratio for determining the later SCC case of Strother v.
3464920 Canada Inc.[1][2] Although Strother was decided in part by a divided
Court, the later case of Canadian National Railway Co. v. McKercher LLP in
2013, decided by a unanimous Court, clarified Canadian jurisprudence in this
field.[3]

Blank v Canada (Minister of Justice) [2006] 2 SCR 319

Page 19 of 57
FACTS:

• In 1995, the Crown laid 13 charges against B and a company for regulatory offences; the
charges were quashed, some of them in 1997 and the others in 2001 


• In 2002, the Crown laid new charges by way of indictment, but stayed them prior to trial 


• B and the company sued the fed gov’t in damages for fraud, conspiracy, perjury and abuse
of its prosecutorial powers 


• In 1997 and again in 1999, B requested all records pertaining to the prosecutions of himself
and the company, but only some of the requested documents were furnished 


• His requests for information in the penal proceedings and under the Access to Information
Act were denied by the gov’t on various grounds, including the “solicitor-client privilege”
exemption set out in s. 23 of the Act 


• Additional materials were released after B lodged a complaint with the Information
Commissioner 


• The vast majority of the remaining documents were found to be properly exempted from
disclosure under the solicitor-client privilege 


• On application for review under s41 of the Act, the motions judge held that documents
excluded from disclosure pursuant to the litigation privilege s/b released if the litigation to
which the record relates has ended 


• On appeal, the majority of the Fed CA on this issue found that the litigation privilege, unlike
the legal advice privilege, expires with the end of the litigation that gave rise to the
privilege, subject to the possibility of defining “litigation” broadly 

HELD: 


• The appeal s/b dismissed 


ANALYSIS: 


• R.J. Sharpe (now Sharpe J.A.) has explained particularly well the differences b/t

litigation privilege and solicitor-client privilege:


o It is crucially important to distinguish litigation privilege from solicitor-

Page 20 of 57
client privilege

o There are, I suggest, at least three important differences b/t the two

First, solicitor-client privilege applies only to confidential

communications b/t the client and his solicitor


o Litigation privilege, on the other hand, applies to communications of a

non-confidential nature b/t the solicitor and third parties and even

includes material of a non-communicative nature


o Secondly, solicitor-client privilege exists any time a client seeks legal

advice from his solicitor whether or not litigation is involved


o Litigation privilege, on the other hand, applies only in the context of

litigation itself

o Thirdly, and most important, the rationale for solicitor-client privilege is

very different from that which underlies litigation privilege

o This difference merits close attention

o The interest which underlies the protection accorded communications b/t a client and a solicitor
from disclosure is the interest of all citizens to have full and ready access to legal advice

o If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it
will be difficult, if not impossible, for that individual to obtain proper candid legal advice

o Litigation privilege, on the other hand, is geared directly to the process of litigation

o Its purpose is not explained adequately by the protection afforded lawyer- client communications
deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client
privilege

o Its purpose is more particularly related to the needs of the adversarial trial process

o Litigation privilege is based upon the need for a protected area to facilitate investigation and
preparation of a case for trial by the adversarial advocate

o In other words, litigation privilege aims to facilitate a process (namely, the adversary process),
while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship b/
t a lawyer and a client)

• (“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of
Upper Canada (1984), 163, at pp. 164-65) 


• Though conceptually distinct, litigation privilege and legal advice privilege serve a common
cause: The secure and effective administration of justice according to law 


• And they are complementary and not competing in their operation 


Page 21 of 57
• But treating litigation privilege and legal advice privilege as two branches of the 

same tree tends to obscure the true nature of both 


• Unlike the solicitor-client privilege, the litigation privilege arises and operates even 

in the absence of a solicitor-client relationship, and it applies indiscriminately to all
litigants, whether or not they are represented by counsel: see Alberta (Treasury Branches) v.
Ghermezian (1999 


• A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or
“chamber” of privacy 


• Another important distinction leads to the same conclusion 


• Confidentiality, the sine qua non of the solicitor-client privilege, is not an essential 

component of the litigation privilege 


• In preparing for trial, lawyers as a matter of course obtain information from 3rd 

parties who have no need nor any expectation of confidentiality; yet the litigation 

privilege attaches nonetheless 


• In short, the litigation privilege and the solicitor-client privilege are driven by 

different policy considerations and generate different legal consequences 


• The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in 


relation to pending or apprehended litigation 


• Once the litigation has ended, the privilege to which it gave rise has lost its specific 

and concrete purpose — and therefore its justification

• But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have
“terminated”, in any meaningful sense of that term, where litigants or related parties remain
locked in what is essentially the same legal combat 


• Except where such related litigation persists, there is no need and no reason to protect from
discovery anything that would have been subject to compellable disclosure but for the
pending or apprehended proceedings which provided its shield 


• Where the litigation has indeed ended, there is little room for concern lest opposing counsel
or their clients argue their case “on wits borrowed from the adversary”, to use the language
of the U.S. Supreme Court in Hickman 


Page 22 of 57
 • I therefore agree with the majority in the Federal CA and others who share their view that
the CL litigation privilege comes to an end, absent closely related proceedings, upon the
termination of the litigation that gave rise to the privilege 


• Thus, the principle “once privileged, always privileged”, so vital to the solicitor- client
privilege, is foreign to the litigation privilege 


• The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor
permanent in duration 


PROFESSIONS AND PROFESSIONALISM

Self-regulation means that lawyers, as a professional community, govern themselves. Each

jurisdiction will have legislation establishing the provincial law society.

In Ontario, for example, the Law Society Act designates the Law Society of Upper Canada
as the authority to ensure that lawyers meet appropriate standards of learning, competence
and professional conduct. It’s for the Law Society to set those standards and apply them
equally across the profession.

Since around the 1950s, Canadian law societies have had complete regulatory control over
lawyers, as well as the power to discipline them. This power is limited by the terms of the
statutory discretion - contained in legislation, such as the Law Society Act - and by the
Canadian Charter of Rights and Freedoms.

According to the Rules, a lawyer has a special responsibility to respect the requirements of
human rights law. That is, to honour the obligation not to discriminate on the basis of
protected grounds with respect to professional employment of other lawyers, articling
students, or any other person that they deal with.

Lawyers perform many roles. They act for many different kinds of clients in a variety of
contexts. Regardless of whom they act for or in what capacity they practise, lawyers are,
collectively, a profession; and individually, lawyers are expected to meet a high standard of
professionalism.

There are three components that underpin professionalism. Professions require:

Page 23 of 57
 1. A sophisticated structure of organization 


2. A formal learning process 


3. The spirit of the public service 


The sophisticated structure is provided by the law societies, established by provincial statute
and exercising an oversight function. The practise of law is strictly regulated, with quasi-
criminal sanction attached to serious breaches of rules.

The formal learning process is familiar to anyone who has applied to study law; been
admitted to law school; and undertaken the path to professional licensure. Common law
lawyers in Canada will typically have studied at least two or three years in an undergraduate
program - many will have one or more degrees - prior to being admitted to law school.
Admission also depends on writing the Law School Admission Test (LSAT), a standardized
assessment of cognitive ability. Upon completion of a 3-year legal education program,
candidates are also required to undergo a period of training. In Ontario, for example,
articling is 10 months, or may be substituted by enrolment in the Law Practice Program.
Finally, the law societies administer bar examinations, which test candidates’ practical and
applied knowledge of law.

The spirit of the public service is enshrined in numerous documents, including the Rules of
Professional Conduct. The governing concept behind the professional identity contained in
all of the professional codes is integrity. This rule requires the lawyer to “carry on the
practice of law and discharge all responsibilities to clients, tribunals, the public and other
members of the profession honourably and with integrity.”

Commentary on this text highlights the importance of maintaining “public confidence in the
administration of justice and in the legal profession.” It also recognizes the “special
responsibilities” of lawyers “by virtue of the privileges afforded the legal profession and the
important role it plays in a free and democratic society and in the administration of justice.”

A profession is unique because it necessitates that the professional must look at her own
individual actions and interests, and to both reflect and model ethical behaviour to society as
a whole. Lawyers don’t operate as individuals, but as members of the profession.

Page 24 of 57
Although many lawyers are business owners or employees, the enterprise of law is not like
any other business activity or employment. Lawyers work within a closed, monopolized
market. This is because the services they provide are not like other marketplace goods. They
perform a professional role that is a higher calling. They are part of the framework of the
rule of law. Lawyers are both users of the justice system, and officers of the court

Given their particular relationship to public authority, lawyers find themselves in a unique
category of “professionalism.”

The Chief Justice of Ontario Advisory Committee on Professionalism defined legal

professionalism as including values such as scholarship, integrity, honour, leadership,
independence, pride in the profession, spirit and enthusiasm, collegiality and civility, service
to the public good, and balanced commercialism.

The Chief Justice’s Advisory Committee’s definition of legal professionalism is not binding
or enforceable on anyone. But it represents a strong statement of qualities that a consensus
within the profession agrees are the hallmarks of professionalism.

The Canadian Bar Association’s model Code of Professional Conduct also echoes these
values when it states in its Preface that:

“The essence of professional responsibility is that the lawyer must act at all times uberrimae
fidei, with utmost good faith to the court, to the client, to other lawyers, and to members of
the public.”

These values are further reflected in the oath that every lawyer takes upon being admitted to
membership. The oath serves as a reminder of the basic tenets of professionalism. In
Ontario, the oath compels lawyers to accept a multi-layered responsibility: to clients; to the
court.

These values are further reflected in the oath that every lawyer takes upon being admitted to
membership. The oath serves as a reminder of the basic tenets of professionalism. In
Ontario, the oath compels lawyers to accept a multi-layered responsibility: to clients; to the
public; and to justice:

I accept the honour and privilege, duty and responsibility of practising law as a barrister and
solicitor in the Province of Ontario. I shall protect and defend the rights and interests of
such persons as may employ me. I shall conduct all cases faithfully and to the best of my
ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the

Page 25 of 57
best interests of my client. I shall not refuse causes of complaint reasonably founded, nor
shall I promote suits upon frivolous pretenses. I shall not pervert the law to favour or
prejudice any one, but in all things I shall conduct myself honestly and with integrity and
civility. I shall seek to ensure access to justice and access to legal services. I shall seek to
improve the administration of justice. I shall champion the rule of law and safeguard the
rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards
that govern my profession. All this I do swear or affirm to observe and perform to the best
of my knowledge and ability.

Legal Ethics and Sustainable practice :

Every day, lawyers make judgment calls about their professional conduct that implicate
questions of legal ethics. Whether to represent a party; how to structure the retainer; what
advice to give; what strategies to employ; how to handle client funds; how to communicate
with other parties and lawyers, and much more.

Legal ethics is concerned as much with the classic “ethical dilemmas” as it is with the
routine, daily discretionary decisions lawyers make in the provision of legal services that
have impact on clients, other parties, the administration of justice, and on society as a
whole.

The challenge for lawyers is to figure out how to develop ethical judgement. Ethical
deliberation can involve complicated decision making, requiring careful consideration. This
is part of the lawyer’s professional responsibility. Developing ethical judgment means
spotting ethical issues and responding appropriately. It is not only about knowing the law,
but also about applying intuition.

To develop intuition, a lawyer needs to be self-reflective about her own personal view of
ethics, and about her conception of the lawyer’s role.

Farrow argues that the dominant models of professionalism are not sustainable. Instead he
argues for what he calls sustainable professionalism.

Sustainable professionalism accounts for the plurality of interests at play by encouraging a

form of ethical judgment that balances the following interests: client interests, lawyer
interests (pecuniary and non-pecuniary), ethical and professional interests (of lawyers and
the profession), public interest.

Page 26 of 57
The Honourable Chief Justice R. Roy McMurtry, former Chief Justice of Ontario has
described the tension between loyal advocacy and the promotion of justice as follows:
“Lawyers are not solely professional advocates or ‘hired guns.’ And while they do not
surrender their free speech rights upon admission to the bar, they are also officers of the
court with fundamental obligations to uphold the duty of counsel to be faithful both to their
client and to the administration of justice.”

The ethical rules and standards are prescribed in a code. But the prescribed rules require
interpretation. Case law and commentary interpret and apply the rules and provide further
explication of the standards to which lawyers will be held accountable. But the task of
ethical deliberation and judgment is one which every lawyer must embrace and continue to
do throughout his or her career.

It matters because some people strongly identify with a classical idea of a lawyer as a
tireless and unrelenting advocate for the client’s interests who holds no individual morality,
only honour for the client. For this type of lawyer, legal ethics raises important limits to role
of the zealous advocate.

The general rule about integrity holds that:

· 2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities
to clients, tribunals, the public and other members of the profession honourably and with
integrity.

· 2.1-2 A lawyer has a duty to uphold the standards and reputation of the legal profession
and to assist in the advancement of its goals, organizations and institutions.

Integrity is now the fundamental quality of any person who seeks to practise as a member of
the legal profession.

It is based on the concern that public confidence in the administration of justice and in the
legal profession may be eroded by lawyer’s irresponsible conduct.

Accordingly, a lawyer’s conduct should reflect favourably on the legal profession; inspire
the confidence, respect, and trust of clients and of the community; and avoid even the
appearance of impropriety.

A lawyer has special responsibilities - by virtue of the privileges afforded the legal
profession, and the important role it plays in a free and democratic society and in the
administration of justice - to respect the human rights laws in force in the jurisdiction.
Page 27 of 57
The integrity commentary states that lawyers are encouraged to enhance the profession
through activities such as:

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

b) participating in legal aid and community legal services programs or providing legal
services on a pro bono basis;

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

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

e) acting as directors, officers and members of non-profit or charitable organizations.

While a lawyer is encouraged to be involved at a variety of levels of community

engagement, one must always remember when participating in community activities, to be
mindful of the possible perception that the lawyer is providing legal advice and a lawyer-
client relationship has been created.

REGULATION OF LAWYERS AND LEGAL PROFESSION

A lawyer must make legal services available to the public efficiently and conveniently and
may offer legal services to a prospective client by any means, as long as the means are not
false or misleading; use coercion, duress or harassment; take advantage of a person’s
vulnerability or trauma; otherwise bring the profession or the administration of justice into
disrepute.

At the same time, a lawyer is permitted to decline representation, as long as it is not for
discriminatory reasons within the meaning of human rights legislation. A lawyer declining
representation should still assist the person to obtain the services of another lawyer qualified
in the field and able to act. This referral service should be done without charge, subject to
Rule 2.8, which allows reasonable referral fees as long as the total cost to the client doesn’t
increase.
Page 28 of 57
Provincial legislation defines what “providing legal services” and “representing a person in
a proceeding” mean. It’s worth reviewing these basic definitions, as they include
comprehensive lists of the kinds of things that lawyers do. This includes:

· Giving a person advice with respect to legal interests, rights or responsibilities.

· Drafting documents relating to personal interests, property, wills, a corporation, custody, or

anything to be used in a legal proceeding.

· Negotiating the legal interests, rights or responsibilities of any person.

· Any conduct necessary to the conduct of a legal proceeding.

Provincial legislation defines who may practise law. No one other than a licensed member of
the bar may practise law. Breaking this rule can lead to prosecution and a fine of $25,000 for
a first offence, and $50,000 for additional offences. Offenders can also be ordered to pay
compensation or restitution.

In addition to preventing the unauthorized practise of law, provincial law societies regulate
the profession by enforcing rules and engaging its disciplinary process. It has the power to
discipline members for “professional MISCONDUCT”.

In addition to preventing the unauthorized practise of law, provincial law societies regulate
the profession by enforcing rules and engaging its disciplinary process. It has the power to
discipline members for “professional misconduct,” “conduct unbecoming a barrister and
solicitor,” or “conduct deserving of sanction.”

Professional misconduct refers mainly to specific breaches of the formal rules.

Conduct unbecoming refers to action or behaviour that demonstrates very poor character.

Conduct deserving of sanction refers to other wrongful action. All lawyer conduct is
expected to meet the basic standard of competence and must not have an adverse impact on
the public interest.

A disciplinary proceeding typically begins with a complaint. The complaint must be lodged,
usually by a client (or former client), but it can also be lodged by another lawyer, judge, or
any member of the public. Occasionally, a complaint will arise as a result of a random Law
Society audit. The complaint is then investigated. The form of investigation is tailored to the
Page 29 of 57
nature of the complaint. Most complaints concern unsatisfied clients, which tend to fall
outside the bounds of discipline jurisdiction.

Some complaints are referred to a hearing after the investigation. They proceed to a hearing
before the Law Society Tribunal, which is a quasi-judicial administrative agency that hears
evidence and makes binding decisions pursuant to the enabling legislation and rules of the
Law Society.

The hearings include full disclosure, examinations of witnesses, and legal argument. The
Charter and common law rules apply. The proceeding is conducted by counsel for the Law
Society, and the Society bears the onus of proof on a balance of probabilities standard.

Competence requires that lawyers keep abreast of legal principles, procedures, and
developments in all areas of law in which they practise.

Relevant factors in assessing whether a lawyer has requisite knowledge or skill in particular
matter will include:

• ·  the complexity of the matter 


• ·  the lawyer’s general experience 


• ·  the lawyer’s training and experience in the field 


· whether it is appropriate to refer the matter to or consult with a licensee of established

competence in the relevant field

· whether the field requires a general degree of proficiency by the general practitioner

A “competent lawyer” is defined a lawyer who has and applies relevant knowledge, skills
and attributes in a manner appropriate to each matter undertaken on behalf of a client.

Applying relevant knowledge, skills, and attributes includes the following professional
activities:

4.2 ) Applying relevant knowledge, skills, and attributes includes the following professional
activities:

Page 30 of 57
(a) knowing general legal principles and procedures and the substantive law and procedure
for the areas of law in which the lawyer practices,

(b) investigating facts, identifying issues, ascertaining client objectives, considering possible
options, and developing and advising the client on appropriate courses of action,

(c) implementing, as each matter requires, the chosen course of action through the
application of legal skills. These include:

(i) legal research,


(ii) analysis,

(iii) application of the law to the relevant facts, (iv) writing and drafting,

(v) negotiation,

(vi) alternative dispute resolution,

(vii) advocacy, and

(vii) problem-solving.

3.1-2 The general rule requiring competent behaviour requires that the lawyer “perform any
legal services undertaken on a client’s behalf to the standard of a competent lawyer.” The
standard of a “competent lawyer” is not clearly defined.

A few indicators include that a lawyer should not undertake a matter without honestly
feeling competent to handle it, or being able to become competent without undue delay, risk,
or expense to the client.

Lawyers have a positive duty to recognize tasks or areas of law in which they lack
competence. This duty not to act without competence flows from the disservice that would
be done to the client by incompetently undertaking that task.

If consulted about such a task, the lawyer should

• ·  decline to act; 


• ·  obtain the client’s instructions to retain, consult, or collaborate with a

licensee who is competent for that task; or 


· obtain the client’s consent for the lawyer to become competent without undue delay, risk or
expense to the client.

Page 31 of 57
ETHICS LAWYERING AND PROFESSIONAL REGULATION

The lawyer’s duty of loyalty is a fundamental feature of the professional relationship.

Threats to the lawyer’s loyalty to the client’s interests must be guarded against. A conflict of
interest arises when the lawyer’s judgment or behaviour is affected by any extraneous
interest or consideration not from the client’s perspective.

Rule 1.1-1 defines conflict of interest as a substantial risk that a lawyer’s loyalty will be
materially and adversely affected by the lawyer’s own interest or by her duties to anyone
else, such as another client, a former client or a third party. The risk has to be substantial,
genuine, and serious.

Lawyers are positively required to actively consider their duties to current, former, and joint
clients, third persons, as well as their personal interests. They should take proactive
measures to examine whether a conflict of interest exists, but also if one may reasonably
arise throughout the duration of the retainer due to new circumstances that may reveal a
conflict.

These are the factors to consider in determining whether a conflict of interest exists.

The Rules state that once a conflict of interest is identified, a lawyer shall not act or continue
to act. That is, unless the client expressly or impliedly consents and it’s reasonable for the
lawyer to conclude that she’s able to represent each client without having a material adverse
effect on the representation of, or loyalty to, the other client. In other words, a client can
waive risk of possible material impairment of her interests in a lawyer-client relationship;
actual material impairment cannot be waived.

Express consent must be fully informed and voluntary after disclosure of full information.
Consent may be implied and need not be in writing where a number of conditions apply.

Implied consent is permitted but will be difficult to prove if it ever becomes an issue.
Review the case of R v Neil.

This is a leading Supreme Court case on conflict of interest among lawyers. Firms have a
fiduciary duty to their clients, so a lawyer or firm must not represent a client whose interest
may be adverse to the interests of another client, unless they get informed consent.

Page 32 of 57
Read the Celanese case for the Supreme Court’s decision on conflicts arising from solicitor-
client privilege.

In that case, the Court upheld the removal of a law firm from acting for a client when the
firm inadvertently came into possession of documents protected by the solicitor- client
privilege of the opposing party. When the opposing side became aware of the firm’s
possession of confidential proprietary information, they brought a motion to disqualify the
firm from continuing to act. It appears that the mere fact of the inadvertent disclosure gave
rise to a conflict of interest.

To what extent must relevance and prejudice be proven in order to invoke the remedy of
disqualification? To what extent does the right to counsel of choice compete with solicitor-
client privilege?

Conflicts can also arise from transfers between law firms.

The Rules have clarified what the common law grappled with for many years.

Unless the former client consents, a transferring lawyer must not participate in any manner
in the new law firm’s representation of its client or disclose any confidential information
respecting the former client.

Further, unless the former client consents, members of the new law firm must not discuss
the new law firm’s representation of its client or the former law firm’s representation of the
former client in that matter with a transferring lawyer.

Further, unless the former client consents, members of the new law firm must not discuss
the new law firm’s representation of its client or the former law firm’s representation of the
former client in that matter with a transferring lawyer.

While mobility within the legal profession and a litigant’s right to choose their own counsel
is important, the standard of confidentiality is higher. While this can make the transfer of
files awkward or stressful, the purpose is to ensure the highest respect for confidentiality and
client autonomy.

It may seem obvious, but an important rule is that lawyers are not permitted to act against a
former client in any matter where confidential information could prejudice the former client,
unless the former client consents.

Page 33 of 57
When a lawyer has acted for a former client and obtained confidential information relevant
to a new matter, another lawyer in the lawyer’s firm is permitted to act in the new matter
against the former client provided that: the former client consents to the other lawyer acting;
or the law firm establishes that it has taken adequate measures on a timely basis to ensure
that there will be no risk of disclosure of the former client’s confidential information to the
other lawyer having carriage of the new matter.

A conflict of interest can also arise during the course of the professional relationship. This
can occur when a personal or sexual relationship arises. Al though lawyers do not have an
obligation to refrain from sex with their clients, the Rules say that sexual or overly personal
relationships with clients may conflict with the lawyer’s duty to provide objective,
disinterested professional advice. The relationship can create confusion about when the
professional relationship ends and the personal relationship begins, which can have
implications for confidentiality.

The relationship may also, in some circumstances, permit exploitation of the client by their
lawyer. If the lawyer is a member of a firm and concludes that a conflict exists, the conflict
is not imputed to the lawyer’s firm, but would be cured if another lawyer in the firm who is
not involved in such a relationship with the client handled the client’s work.

LAWYER CLIENT RELATIONSHIP

The foundation of the lawyer-client relationship is trust and respect. Clients are to trust
lawyers to act in the clients’ best interests. Lawyers are to respect clients’ autonomy, and
only act upon duly informed instructions from the client.

The formation of the lawyer-client relationship is a critical moment - the retainer outlines
the basic framework of the professional relationship. It outlines the expectations and the
commitments that will govern throughout.

Traditionally, advertising of legal services was considered vulgar and demeaning of the
profession. However, access to justice requires that people know where to find lawyers and
to have options to meet their justice-related needs. The general rule against advertising
remains, but there are exceptions. Lawyers may advertise their fees as long as it’s for
informational purposes only, is clear and they stick to what they advertise.

Page 34 of 57
Lawyers as members of the profession are, by virtue of that fact alone, held out as
knowledgeable, skilled, and capable in the practice of law. A client is entitled to assume that
the lawyer has the ability and the capacity to deal adequately with all legal matters
undertaken on the client’s behalf.

The general test for determining whether a particular form of marketing of legal services is
permissible is to ask: is the marketing demonstrably true, accurate and verifiable; is not
misleading, confusing or deceptive, or likely to mislead, confuse or deceive; and is in the
best interest of the public and is consistent with a high standard of professionalism.

Once a lawyer-client relationship has been formed, there are strict rules governing
terminating the relationship. The client may terminate the relationship at any point, subject
to payment consequences contained in the retainer.

But the lawyer may only terminate a retainer with appropriate notice and for good cause.

Good cause tends to be found where there is a “serious loss of confidence” in the
relationship. This may arise in the case of dishonesty or deceit, or if the client refuses to
accept the lawyer’s advice, especially on a significant point or on several occasions.
Additionally, if the client insists on pursuing a dishonest or deceptive course of action, the
lawyer may withdraw. More about that later.

In the case of non-payment of fees, the lawyer may only withdraw if no serious prejudice to
the client would result. A lawyer may never use threats of withdrawal to pressure a client to
adopt a particular course of action.

A lawyer must always remember her ongoing duty of loyalty to the client, even after the
termination of the retainer. This means the lawyer must continue to guard the client’s
confidentiality, subject to minor permissive exceptions. This topic is covered in greater
detail in another module.

Once a lawyer has gone on the record in a proceeding, it can also be difficult to get off the
record, often only possible with leave of the court. For these reasons, it is essential for
lawyers to be careful and clear about the way they form and end relationships with clients.

CLIENT CONFIDENCE

Page 35 of 57
The lawyer’s duty to preserve client confidences is at the heart of the solicitor-client
relationship. It derives both from the Rules but also from ancient and still relevant common
law doctrines. Confidentiality is significant at two levels.

For the client, sharing highly personal information is made easier knowing that it will be
systematically guarded by the lawyer. For lawyers, confidentiality encourages clients to
share more comprehensive information that they might not otherwise. Being able to have
full access to client information and knowledge is important for the lawyer; it builds trust
and allows you to do your job.

For these reasons, there is a public policy value in protecting the lawyer-client relationship
by law, which it is. That’s why the ethical obligations that flow from the sanctity of this
relationship are so important.

Confidentiality and privilege are distinct but interrelated concepts that seal the lawyer-client
relationship. They also give wings to the duty of loyalty.

Lawyers owe the duty of confidentiality to every new or continuing client without
exception. This duty is owed to anyone seeking legal advice on a matter that invokes the
lawyer’s professional knowledge. This doesn’t have to happen in a law office. It doesn’t
only start when a retainer is signed. It is triggered when someone understands that you’re a
lawyer and engages you in discussion about any legal matter.

For this reason, lawyers must be mindful of potential conflicts or risks of inadvertent
disclosure when accepting confidential information on an informal basis. In other words,
you should be very careful when having informal conversations with anyone about the law.

The content of the rule provides that the 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.

There are important exceptions to this. A lawyer may divulge client confidences if she is
expressly or impliedly authorized to do so by the client. Express authorization would be the
safest and best practice. You can divulge if required to by law or by a court; if required by
the Law Society; or if otherwise permitted by the Rules. Check the links on the screen to
review important other exceptions to confidentiality.

Concerning public safety, the Rules allow a lawyer to disclose confidential information
when the lawyer believes, on reasonable grounds, that there is imminent risk of death or

Page 36 of 57
serious bodily harm AND that disclosing confidential information is necessary to prevent
the death or harm. Even where it is justifiable, the lawyer is not required to disclose, and
must be careful not to disclosure more than is absolutely necessary to prevent the death or
harm.

Privilege is related to, but narrower than, confidentiality. It was developed by the courts to
ensure that principles exist to keep certain types of highly prejudicial evidence out of the
courtroom.

The most important and common form of privilege is litigation privilege, which creates a
“zone of privacy” in relation to pending litigation so that parties can “prepare their
contending positions in private, without adversarial interference and without premature
disclosure.”

Litigation privilege covers any and all communications relating to, or in contemplation of,
litigation. This includes communications not only between the lawyer and the client, but
also with third parties. This is important because in many court proceedings, all relevant
documents and records must be produced to the court and to the opposing side. A client
would have a very difficult time communicating with lawyers, experts, and others if these
privilege does not exist.

The issue was how do we determine when public safety trumps

privilege.
The Supreme Court in Smith v Jones ( prostitute case - refer notes )
was divided 6-3. It was a tough case. The majority laid out the test
for setting aside privilege and found that the circumstances of this
case met it.
Some factors to consider include: the likelihood that the potential
injury will actually occur (if so, when); whether there is any other
feasible way to prevent the potential injury; and what circumstances
brought the information to the lawyer’s attention.
The framework examines the facts of the case for clarity,
seriousness, and imminence. Is there an identifiable victim or group?
How serious is the threat - does it meet the threshold of risking
serious bodily or psychological harm? Or of being killed? And

Page 37 of 57
finally, is it urgent? Will something terrible happen soon if you don’t
break privilege?
Assuming you can meet this very high standard for setting aside
privilege, the amount of disclosure of privileged evidence must still
be limited to only those aspects that are relevant to the imminent risk
of serious bodily harm or death to an identifiable person or group.
In Smith v Jones, the Supreme Court majority concluded that a
“reasonable observer, given all the facts for which solicitor-client
privilege is sought, would consider the potential danger posed by the
accused [Mr. Jones] to be clear, serious, and imminent.”
Turning to a very different kind of exception to the duty of
confidentiality. Lawyers may disclose confidential information in
order to prove or collect fees from a client or former client. While
lawyers may break confidence to protect the public from a public
safety risk, they are also permitted to break confidence out of pure
self-interest. To get paid.
In Cunningham, the Supreme Court dealt with a delicate set of facts
to lay out the framework for balancing the interconnected interests of
lawyers, clients, and the public.
Counsel representing an accused wanted to get off the case due to
non-payment of fees. His client had been receiving support from
Legal Aid, but when that ended the client was unable to pay his
lawyers’ fees. The judge denied the request on the basis that it would
cause delay, which would prejudice the Crown in its prosecution.
The Court ruled that certain rules should be applied when a lawyer
seeks to withdraw from representing someone in a proceeding.
An emerging issue in ethics and confidentiality is the role of the
whistleblower. Whistleblowing is a difficult issue because it is, in a
sense, the ultimate betrayal of loyalty: it is the intentional breach of
confidentiality to expose information that the whistleblower only has
access to because of a relationship of confidence.

Page 38 of 57
Why and when is it justified?
At the end of 2001, a number of major American corporations,
including Enron, were found to have engaged in massive institutional
fraud. It was clear that a number of lawyers were complicit in this
fraud. It caused a major reaction in the world of lawyer ethics.
In Canada, Rules were developed and Commentary were adopted to
codify a system of “up the ladder” reporting for lawyers. A lawyer
who becomes aware of circumstances of proposed misconduct
should ask that the matter be reconsidered. If necessary, the lawyer
must bring the proposed misconduct to the attention of a higher (and
ultimately the highest) authority in the organization. This is an
absolute responsibility regardless of any direction from anyone in the
organization to the contrary.
The Commentary tells us that if these measures fail, it may be
appropriate for the lawyer to resign in accordance with the Rules for
withdrawal from representation.
The Commentary tells us that if these measures fail, it may be
appropriate for the lawyer to resign in accordance with the Rules for
withdrawal from representation.
The Rules get muddy at this point. Lawyers are obligated not to be
involved in criminal or fraudulent activity but it is not clear that they
have a positive responsibility to whistle blow. In fact, the
Commentary states that the duty of confidentiality continues, subject
to the few, explicit exceptions. Lawyers who take it upon themselves
to whistle-blow risk facing disciplinary action or other consequences.
Have a look at the Edgar Schmidt case.
That wraps up confidentiality and privilege. Be sure to review the
distinction between confidentiality and privilege. It’s not complicated
but you just need to remember that privilege is more narrow than
confidentiality and refers to evidence in legal proceedings. Next,
we’ll turn to the topic of conflicts of interest.

Page 39 of 57
CONFLICT OF INTEREST :

The lawyer’s duty of loyalty is a fundamental feature of the

professional relationship. Threats to the lawyer’s loyalty to the
client’s interests must be guarded against. A conflict of interest arises
when the lawyer’s judgment or behaviour is affected by any
extraneous interest or consideration not from the client’s perspective.
Rule 1.1-1 defines conflict of interest as a substantial risk that a
lawyer’s loyalty will be materially and adversely affected by the
lawyer’s own interest or by her duties to anyone else, such as another
client, a former client or a third party. The risk has to be substantial,
genuine, and serious.
Lawyers are positively required to actively consider their duties to
current, former, and joint clients, third persons, as well as their
personal interests. They should take proactive measures to examine
whether a conflict of interest exists, but also if one may reasonably
arise throughout the duration of the retainer due to new
circumstances that may reveal a conflict.
These are the factors to consider in determining whether a conflict of
interest exists.
The Rules state that once a conflict of interest is identified, a lawyer
shall not act or continue to act. That is, unless the client expressly or
impliedly consents and it’s reasonable for the lawyer to conclude that
she’s able to represent each client without having a material adverse
effect on the representation of, or loyalty to, the other client. In other
words, a client can waive risk of possible material impairment of her
interests in a lawyer-client relationship; actual material impairment
cannot be waived.
Express consent must be fully informed and voluntary after
disclosure of full information. Consent may be implied and need not
be in writing where a number of conditions apply.

Page 40 of 57
Implied consent is permitted but will be difficult to prove if it ever
becomes an issue. Review the case of R v Neil.
This is a leading Supreme Court case on conflict of interest among
lawyers. Firms have a fiduciary duty to their clients, so a lawyer or
firm must not represent a client whose interest may be adverse to the
interests of another client, unless they get informed consent.
Read the Celanese case for the Supreme Court’s decision on
conflicts arising from solicitor-client privilege.
In that case, the Court upheld the removal of a law firm from acting
for a client when the firm inadvertently came into possession of
documents protected by the solicitor- client privilege of the opposing
party. When the opposing side became aware of the firm’s possession
of confidential proprietary information, they brought a motion to
disqualify the firm from continuing to act. It appears that the mere
fact of the inadvertent disclosure gave rise to a conflict of interest.
Further, unless the former client consents, members of the new law
firm must not discuss the new law firm’s representation of its client
or the former law firm’s representation of the former client in that
matter with a transferring lawyer.
While mobility within the legal profession and a litigant’s right to
choose their own counsel is important, the standard of confidentiality
is higher. While this can make the transfer of files awkward or
stressful, the purpose is to ensure the highest respect for
confidentiality and client autonomy.
It may seem obvious, but an important rule is that lawyers are not
permitted to act against a former client in any matter where
confidential information could prejudice the former client, unless the
former client consents.
When a lawyer has acted for a former client and obtained
confidential information relevant to a new matter, another lawyer in
the lawyer’s firm is permitted to act in the new matter against the
former client provided that: the former client consents to the other
Page 41 of 57
lawyer acting; or the law firm establishes that it has taken adequate
measures on a timely basis to ensure that there will be no risk of
disclosure of the former client’s confidential information to the other
lawyer having carriage of the new matter.
To what extent must relevance and prejudice be proven in order to
invoke the remedy of disqualification? To what extent does the right
to counsel of choice compete with solicitor-client privilege?
Conflicts can also arise from transfers between law firms.
The Rules have clarified what the common law grappled with for
many years.
Unless the former client consents, a transferring lawyer must not
participate in any manner in the new law firm’s representation of its
client or disclose any confidential information respecting the former
client.
When a lawyer has acted for a former client and obtained
confidential information relevant to a new matter, another lawyer in
the lawyer’s firm is permitted to act in the new matter against the
former client provided that: the former client consents to the other
lawyer acting; or the law firm establishes that it has taken adequate
measures on a timely basis to ensure that there will be no risk of
disclosure of the former client’s confidential information to the other
lawyer having carriage of the new matter.
A conflict of interest can also arise during the course of the
professional relationship. This can occur when a personal or sexual
relationship arises. Al though lawyers do not have an obligation to
refrain from sex with their clients, the Rules say that sexual or overly
personal relationships with clients may conflict with the lawyer’s
duty to provide objective, disinterested professional advice. The
relationship can create confusion about when the professional
relationship ends and the personal relationship begins, which can
have implications for confidentiality.

Page 42 of 57
The relationship may also, in some circumstances, permit
exploitation of the client by their lawyer. If the lawyer is a member
of a firm and concludes that a conflict exists, the conflict is not
imputed to the lawyer’s firm, but would be cured if another lawyer in
the firm who is not involved in such a relationship with the client
handled the client’s work.

ADVERSARY SYSTEM AND LAWYERS AS ADVOCATES :

The central role of a lawyer is to be a loyal advocate. Loyalty to the

client is the core moral requirement associated with legal
professionalism in the common law adversarial system. It requires
the lawyer to place the interests of the client above those of third
parties; to advance the client’s goals even if it harms others; and to
place the interests of the client above the lawyer’s.
Why loyalty? Loyalty to clients promotes client autonomy. This is a
vehicle for the protection of individual rights and freedoms. Lawyers
can assist individuals to do what they cannot do alone. Loyalty also
promotes access to justice. Law helps build civil society and needs to
be accessible to all, in order for law to perform its function of
enabling peaceful resolution of disputes between citizens, and
between the state and the citizen. Loyalty ensures that an individual
seeking to access justice will have an expert advocate who can be
trusted implicitly to advance the client’s interests.
Blind or absolute loyalty creates ethical challenges for lawyers on
two levels. First, loyalty can conflict with the law.
The Rules provide that: When acting as an advocate, a lawyer shall
represent the client resolutely and honourably within the limits of the
law while treating the tribunal with candour, fairness, courtesy, and
respect. Sometimes, if the lawyer can’t rein in her client, she must
Page 43 of 57
act disloyally and refuse to commit or assist in a crime or in a breach
of the Rules. A lawyer is also permitted, though not required, in some
instances to abandon loyalty and report the client.
The duty of loyalty mandates that the lawyer “raise fearlessly every
issue, advance every argument, and ask every question, however
distasteful, which the lawyer thinks will help the client's case and to
endeavour to obtain for the client the benefit of every remedy and
defence authorized by law. The lawyer must discharge this duty by
fair and honourable means, without illegality, and in a manner that is
consistent with the lawyer's duty to treat the tribunal with candour,
fairness, courtesy, and respect and in a way that promotes the parties’
right to a fair hearing where justice can be done. Maintaining dignity,
decorum, and courtesy in the courtroom is not an empty formality
because, unless order is maintained, rights cannot be protected.”
When acting as an advocate, “a lawyer should refrain from
expressing the lawyer’s personal opinions on the merits of a client’s
case.”
“When opposing interests are not represented... the lawyer must take
particular care to be accurate, candid, and comprehensive in
presenting the client's case so as to ensure that the tribunal is not
misled.”
“The lawyer should never waive or abandon the client's legal rights,
for example, an available defence under a statute of limitations,
without the client's informed consent.”
At the same time, the lawyer “should avoid and discourage the client
from resorting to frivolous objections, attempts to gain advantage
from slips or oversights, or tactics that will delay and harass the other
side.”
It should be clear by this point that, while a lawyer’s role is to be an
advocate, there are many limits on this role that will depend on
circumstances. Under the Rules, specific instruction is given with
respect to limits on advocacy.
Page 44 of 57
A lawyer must do the following things: not abuse the process in a
way which causes malice and harm to the other party; not assist or
permit dishonest or dishonourable conduct; avoid conflicts of interest
with the officers of the court; ensure that no undue pressure is
exerted on the decision maker; not attempt to deceive a tribunal,
misrepresent the facts and evidence, make patently false statements
to witnesses, fail to disclose caselaw to a tribunal where it is bound
to follow it, dissuade a witness from giving evidence, permit a
witness to present misleading evidence, or misrepresent the client's
position or the points at issue. A lawyer must not abuse, hector, or
harass a witness, inconvenience a witness, attempt to gain a benefit
by threatening criminal charges against anyone, or appear in court
while under the influence of alcohol or drugs.
Many of the limits to a lawyer’s professional activity are based on
protecting public interests or on ensuring civil dealings between
members of the bar, and between the profession and the public.
Although the lawyer is an advocate in an adversarial system, the
professional culture expects a form of civility in professional
conduct.
According to Alice Woolley, civility has two central meanings: first,
that lawyers should treat each other with a degree of politeness; and
secondly, that lawyers should act fairly, honestly, and with the utmost
respect in their dealings with other lawyers, and with members of the
court.
Civility is a controversial concept, first because there are many
different subjective views on what politeness or civility means in
practice. Think about the kinds of behaviours lawyers engage in in
an adversarial system. There are many things that lawyers do that
would not be considered polite in everyday life, yet they MUST do it
as part of their professional responsibility. Things like making strong
allegations against a person or corporation with no evidence, which
is essentially what a statement of claim is. Accusing others of being
untruthful, which is what lawyers do all the time in challenging
opposing evidence; using deadlines and procedural threats to
Page 45 of 57
pressure others to do what you want, which is what you do when
advocating for someone in the court process. All the while, however,
lawyers refer to one another as “my friend.”
This illustrates one of the paradoxes of lawyering. At the very same
time, one must zealously advocate solely for the interests of one’s
client, while also being civil and polite to others who may be
obstructing or challenging the interests of your client.
With this backdrop, let’s consider the content of this obligation.
Courtesy and good faith are the hallmarks of the formal rule about
civility. The Rules provide that: “A lawyer shall be courteous, civil,
and act in good faith with all persons with whom the lawyer has
dealings in the course of their practice.”
If it operates as it should, civility ensures that lawyers uphold their
duties as officers or the court. So, in this sense, it does serve as a
limit on zealous advocacy for the client. Lawyers wear multiple hats,
which include duties, not to advocate for others, but to respect others
and treat the system with appropriate personal deference. This is
meant to maintain and improve the administration of justice in the
eyes of the public, as well as to ensure fair and courteous dealings
amongst lawyers within that system.
Open-court conflict is not the only way that civility issues arise. A
civil approach to lawyering calls for building habits in everyday
professional activity that will produce civility in practice.
The responsibility to be civil includes a list of mandated habits or
practices.
A lawyer must agree to reasonable requests from the other side
concerning trial dates, adjournments, the waiver of procedural
formalities, and other matters that don’t prejudice the rights of the
client. This might seem obvious, but the question of prejudice is
open to interpretation and argument. In reality, most lawyers agree to
reasonable requests out of self-interest; that is, reputation matters and
every lawyer will need indulgences from time to time.
Page 46 of 57
The Rule also requires that the lawyer avoid sharp practice. This
means not taking advantage of, or act without fair warning upon,
slips, irregularities, or mistakes on the part of the other side. So long
as it doesn’t go to the merits or that it doesn’t involve the sacrifice of
a client's rights.
Again, the rule sounds laudable, even idealistic, in an adversarial
context. You’re not allowed to hit your friend when he’s down. You
have to win fair and square. You can’t take advantage of slip-ups -
you must win on equal footing. But wait, if you give fair warning, it
might be ok. And if it helps get to the truth and saves your client,
then it also might be ok. Once again, most lawyers tend to avoid
using sharp practices because it makes for uncomfortable
professional relationships. At the end of the day, clients benefit from
having a lawyer who enjoys the trust and respect of other members
of the bar. Nurturing your reputation in this regard is one way to
ensure civility in your practice.
A lawyer is prohibited from recording conversations with clients or
other lawyers without giving notice. This is an important rule
because in the regular world, there is no such prohibition. Anybody
is generally free to record any conversation, whether surreptitiously
or openly. But a lawyer has a unique duty to disclose the intent to
record.
In communications with clients, other lawyers or any other person, a
lawyer must not send correspondence (that is, letters, email, faxes,
blogs, maybe social networking posts) that is abusive, offensive, or
doesn’t use proper tone.
Have a look at the Laarakker case for an example of how civility
was enforced against a lawyer for his written correspondence to
another lawyer, coupled with a posting on an online blog about the
matter.
The BC tribunal found that the lawyer’s behaviour was unbecoming
both for the manner in which he communicated to the other lawyer,
as well as for identifying himself online as a lawyer and making a
Page 47 of 57
further improper communication. While Laarakker might have been
raising a legitimate issue against the lawyer on the other side, the
proper course of action was to file a formal complaint with the
relevant law society, not to write a rude letter and complain about it
online.
According to Alice Woolley, the concept of civility is primarily
about courtesy, manners, and politeness. It has, for generations, been
a focal value of ethical professional conduct. But, she says, this focus
is misguided because it shifts emphasis away from other, more
important ethical values that ensure the proper functioning of the
justice system. As a self-regulating profession, an undue emphasis on
civility could undermine lawyers’ obligations to hold each other to
account.
Consider whether you agree with Woolley as you read the Groia
case.
This case brings us back to the question: does the obligation to use
polite and courteous language dampen the function of the zealous
advocate?
You might be familiar with the facts of the case ( refer to case 1)
Groia used a variety of tactics in his defence of a client before the
Ontario Securities Commission (OSC). He repeatedly attacked the
competence of the lawyers acting for the OSC; he threatened to call
the Chairman of the OSC and other high profile actors as witnesses;
he used loud and profane language, sarcasm, and insults in the
courtroom; he opposed every document raised as evidence by the
other side; his behaviour caused the trial to be stalled several times.
Groia was a fearless and zealous advocate. He tried every possible
route to defend his client, as he believed he was required to do.
In 2013, the Law Society Appeal Panel concluded that Mr. Groia’s
professional misconduct lasted for 10 days of trial, had a serious
adverse impact on the trial itself and on a witness who was suffering
serious health problems. The misconduct was a triggering event for
Page 48 of 57
the subsequent OSC application to have the trial judge removed,
which although unsuccessful, was found to have a reasonable basis.
The misconduct directly led to a denial of costs to the client.
In 2013, the Law Society Appeal Panel concluded that Mr. Groia’s
professional misconduct lasted for 10 days of trial, had a serious
adverse impact on the trial itself and on a witness who was suffering
serious health problems. The misconduct was a triggering event for
the subsequent OSC application to have the trial judge removed,
which although unsuccessful, was found to have a reasonable basis.
The misconduct directly led to a denial of costs to Groia’s client,
even though he would have otherwise been entitled to costs. All of
these were reasons in support of a finding of misconduct and serious
penalty.
Is Woolley right? Does a decision like Groia have a chilling effect on
the fearless advocacy dictated by Rule 5.1-1?
Consider this scenario.
The Crown is prosecuting an individual for sexual assault. The
alleged victim, and key witness, is HIV positive. On learning this
fact, the judge in the case directs the Crown to have the witness
testify either wearing a mask, by videoconference from another
courtroom, or from a table situated 30 feet from the judge. In
submissions, the Crown loses his temper and tells the judge that he
has “the intelligence of a goat” and the “moral sensitivity of a
member of the KKK.”
Do you think the Crown should be subject to professional discipline?
Why or why not?

ADR

Alternative dispute resolution, or ADR, promotes a more participatory

model of lawyering. The traditional lawyer-client model sets up the lawyer
Page 49 of 57
as the leader, and the client as passive. The conventional norms of decision
making in the lawyer-client relationship have firmly established that the
lawyer would advise the client. It was the duty of the lawyer to steer the
client in the direction deemed to be most appropriate.
Under the participatory model, the client is an active participant. While the
lawyer remains autonomous, the client is able to assert his or her wishes
regarding the outcome of the matter, and can also play an important role in
the decision-making process.

SPECIFIC PRACTICE AREAS :

While the Rules of Professional Conduct in each jurisdiction apply to
each and every lawyer, it well accepted that different lawyering
settings and fields can bring different sets of ethical considerations.
There are many specific practice areas that we will not look at in
detail. Everything from poverty law to family law to real estate law -
each of these areas will have its own unique set of ethical factors at
play, risks, and expectations of the lawyer.
We will take a quick look at three practice areas: the criminal law;
organizational or corporate practice; and acting as counsel for the
government.
CRIMINAL LAW :

In criminal proceedings, both the Crown and defence counsel are

“officers of the court.” Officers of the court are barred from engaging
in certain forms of overzealous adversarial behaviour in their role
seeking the poorly defined principles of “truth and justice.”
Crown counsel in criminal prosecution are subject to conflicting
obligations that must be balanced. The Crown must zealously
Page 50 of 57
advocate to obtain a conviction, but must simultaneously uphold
their duty to be fair and objective towards the accused.
The Crown plays a role as “minister of justice,” which is
encapsulated by three principles:
The Crown plays a role as “minister of justice,” which is
encapsulated by three principles:
1. Crown can seek conviction but must all the while strive to ensure
that the defendant has a fair trial
2. Crown’s goal is not to obtain a conviction at any cost, but to assist
the court in eliciting truth without infringing upon the legitimate
right of the accused
3. At each stage of the criminal process, the discretion vested in the
Crown should be exercised with objectivity and impartiality, and not
in a purely partisan way.
When acting as a prosecutor, a lawyer shall act for the public and the
administration of justice resolutely and honourably within the limits
of the law while treating the tribunal with candour, fairness, courtesy,
and respect. The Crown’s prime duty is not to seek to convict but to
see that justice is done through a fair trial on the merits. The
prosecutor exercises a public function involving much discretion and
power and must act fairly and dispassionately.
The prosecutor should not do anything that might prevent the
accused from being represented by counsel or communicating with
counsel and, to the extent required by law and accepted practice,
should make timely disclosure to defence counsel or directly to an
unrepresented accused of all relevant and known facts and witnesses,
whether tending to show guilt or innocence. The Crown must
disclose and call all relevant evidence.
The criminal defence lawyer, on the other hand, has no such
obligation. The defence is not required to assist the state to take away
her client’s liberty; rather, she must adopt a heightened position of
Page 51 of 57
loyal advocacy to the client, to ensure that the presumption of
innocence, fair trial rights, and other constitutional considerations are
dealt with appropriately.
According to the Rules Commentary, “When defending an accused
person, a lawyer's duty is to protect the client as far as possible from
being convicted... Accordingly, and notwithstanding the lawyer's
private opinion on credibility or the merits, a lawyer may properly
rely on any evidence or defences including so-called technicalities
not known to be false or fraudulent.”
At the same time, admissions made by the accused to a lawyer may
impose strict limitations on the conduct of the defence, and the
accused should be made aware of this.
For example, if the accused clearly admits to the lawyer the factual
and mental elements necessary to constitute the offence, the lawyer,
if convinced that the admissions are true and voluntary, may properly
take objection to the jurisdiction of the court, or to the form of the
indictment, or to the admissibility or sufficiency of the evidence, but
is prohibited from suggesting that some other person committed the
offence. The lawyer is also prohibited from calling any evidence
which, by reason of the admissions, the lawyer believes to be false.
Be sure to review the specific rules around what lawyers in the
criminal context must and must not do.

ORGANISATIONAL AND CORPORATE LAWYERS :

Corporations, as organizations, have moral duties towards human

beings. The law has long recognized corporations as having legal
personality as a technical matter. But the corporation now has been
assigned moral responsibilities.
Corporate lawyers have the professional duty to advance the interests
of the client - that is, the organization. So it falls to them to advance

Page 52 of 57
the corporation’s interests as a whole, as well as to uphold its social
responsibility to be a good corporate citizen.
In this world, it is not strong rules enforcement that governs
behaviour, but rather lawyers carrying the responsibility of steering
their clients in appropriate directions. In this sense, it can be said that
big organizations function as much on trust as on strict legal
compliance. Lawyers carry much of the responsibility for fulfilling
that trust.
Review the Rule on relationships with clients and remember that the
lawyer must treat the entity - the organization as a whole - as the
client, not the individuals from whom the lawyer receives
instructions.
Yet, at the same time, the lawyer must communicate with the
“instructing client.” This makes the duties around this relationship
complicated sometimes, for in-house lawyers, where the client is also
the employer.
It’s important for the lawyer to be clear in his mind what the different
interests are at play. You have the organization or company, which as
an entity has its own interests. You have the employees and executive
officers - that is, the workers and the bosses.
You then have the board of directors, or trustees, etc. These are the
governors - those making key decisions for the organization. These
individuals are mostly shielded by the corporate veil from personal
liability for actions of the corporation, but those individuals may
have personal interests that the lawyer could be confronted with.
And finally, you have the individual lawyer, who will have her own
employment, professional, and other interests.
The lawyer is expected to focus solely on the interests and goals of
the company or organization as a whole.
According to ethics rules, corporate organizational lawyers owe their
duty of loyalty to the corporation. But in reality, the lawyers have
Page 53 of 57
direct and exclusive relationships with the top executives, and often
adopt a “zealous advocate” approach, ignoring or being shielded
from improper conduct.
The Rules provide clear obligations when such a lawyer comes to
know that the organization either intends to act, has acted or is
acting, dishonestly, fraudulently, criminally, or illegally.
In such circumstances, the lawyer MUST advise the instructing
client against the action.
If it continues, the lawyer MUST then report to the organization’s
chief legal officer. He MAY also report it to the chief executive office
- the top manager.
Then, if the proposed course of conduct is still not abandoned, the
lawyer must report it up the chain of command all the way to the
Board of Directors, if necessary.
If the course of conduct is still not abandoned, the lawyer must
withdraw from the case. The Commentary points out that for some
lawyers, this may necessarily involve resigning a position. If
resignation is the only way to withdraw, that is what the lawyer must
do.
What’s not clear is what the lawyer should do in the case of an act or
course of conduct that occurred in the past but which is not ongoing.
There is clearly a duty to report initially. The Rules are not clear how
far it goes. But certainly, the lawyer should remain vigilant to nip
any further such issues in the bud.
Some of you may have been surprised to see that the lawyer is not
then required, after withdrawing from representation, to report the
act or imminent act.
Remember, in order to have withdrawn, the lawyer must KNOW
with certainty that a dishonest, fraudulent, illegal, or criminal act has
been, will be, or is being committed. Knowledge requires direct
evidence.
Page 54 of 57
If the lawyer has direct evidence of dishonesty, fraud, illegality or
criminality, shouldn’t there be an obligation to report it if it is
ongoing or imminent? Is it enough to simply object and resign?
GOVERNMENT LAWYERS :

Some argue that government lawyers have an especially unique role

because they are guardians of the rule of law. The traditional
approach compartmentalized the “public” role of government
lawyers, separate from their role as lawyers. The profession,
historically, had an interest in maintaining a semblance of
professional conformity. The idea that a lawyer is a lawyer is a
lawyer.
These days, there is greater attention being paid to the unique role of
government lawyers, who are neither public servants who happen to
be lawyers, or lawyers who happen to represent the government.
They are a special hybrid and for that reason deserve to be regulated
further with respect to public power and accountability.
Think about it for yourself and consider the public implications.
Should government lawyers be held to a higher standard of ethics?

ACCESS TO JUSTICE :

In conditions like this, where the economy is tight and even the big firms
are tightening their belts, ethics and access become intricately linked to
one another. Lawyers are expected to facilitate for each and every person
they encounter the ability of that person to obtain legal representation
when the need arises.
What role should the profession play in making legal services more
accessible and affordable? What are the obligations of individual lawyers?
A basic definitional question is: what does it mean? Does it mean access to
legal services, to a lawyer? Does it mean access to the judiciary - to the

Page 55 of 57
courts, to a legal process? Or should the focus not be on access, but rather
on justice? Can a right to substantive justice be guaranteed? How? Where
is justice situated, and how is it dispensed?
Alternative dispute resolution, public legal education, and institutional
streamlining are all designed to promote both substantive justice as well as
procedural fairness and the accessibility of legal institutions.
“In a liberal democracy, true access to justice requires that all people
should have an equal right to participate in every institution where law is
debated, created, found, organized, administered, interpreted and applied.”
This includes law schools, the judiciary, the public service, the police,
Parliament, and the law societies. Improving access to these sites of
influence can help change the system and empower citizens.
The changing landscape of law, firm structure, legal fees, and adversarial
approaches to advocacy have necessitated new models of lawyering.
The new lawyers are “practical problem solvers, creative thinkers,
excellent communicators, and persuasive negotiators. They understand that
settlement is the norm for good lawyering and that going to court is just
one option.”
The new model includes emphasis on mandatory mediation, settlement
conferencing, case management programs, judicial mediation, and
restorative justice processes.
Settlement falls outside of the formal legal process or justice-as-process
models. Settlement conferences may be a part of litigation, or a client may
retain a lawyer to engage in collaborative lawyering, and to not litigate.
Under this new model of collaborative lawyering, if the discussions do not
result in an agreement.
The changing landscape of law, firm structure, legal fees, and adversarial
approaches to advocacy have necessitated new models of lawyering.
The new lawyers are “practical problem solvers, creative thinkers,
excellent communicators, and persuasive negotiators. They understand that
settlement is the norm for good lawyering and that going to court is just
one option.”

Page 56 of 57
The new model includes emphasis on mandatory mediation, settlement
conferencing, case management programs, judicial mediation, and
restorative justice processes.
Settlement falls outside of the formal legal process or justice-as-process
models. Settlement conferences may be a part of litigation, or a client may
retain a lawyer to engage in collaborative lawyering, and to not litigate.
Under this new model of collaborative lawyering, if the discussions do not
result in an agreement, each party must retain new lawyers to litigate. This
marks a step away from the formalized process of lawyers under a rights-
based conflict resolution model, into a more collaborative model with an
eye to access to justice.

Role Morality

Role morality is the notion that people sometimes fail to live up to their own ethical
standards because they see themselves as playing a certain role that excuses them from
those standards.

For example, say a person views herself as a loyal employee of a company. In that role,
she might act unethically to benefit her employer in ways that she would never do to help
herself. To paraphrase researcher Keith Levitt, the same person may make a completely
different decision based on what hat – or occupational role – she may be wearing at the
time, often without even realizing it.

In one study people were asked to judge the morality of a company selling a drug that
caused unnecessary deaths when its competitors’ drugs did not. 97% of people
concluded that it would be unethical to sell the drug. Then, the researchers placed
different people into groups, and asked each group to assume the role of the company’s
directors. Acting as directors, every one of the 57 groups decided to sell the drug. They
framed the issue as a business decision in dollars-and-cents terms. They ignored the
harmful impact their decision would have on others.

So, ethical behavior requires maintaining the same moral standards regardless of the
roles we play at home, at work, or in society.

Page 57 of 57