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FAMILY LAW IN PROVINCIAL COURT

PAPER 3.2

Professional Liability and Professional


Responsibility In and Out of the Courtroom

These materials were prepared by Leslie J. Muir of Holmes & King, Vancouver, BC, for the Continuing Legal
Education Society of British Columbia, March 2010.
Leslie J. Muir

3.2.1

PROFESSIONAL LIABILITY AND PROFESSIONAL


RESPONSIBILITY IN AND OUT OF THE COURTROOM
I.

The Problem ....................................................................................................................... 1


A. Professional Liability ............................................................................................................. 1
1. Negligence ...................................................................................................................... 2
2. Breach of Contract ......................................................................................................... 4
3. Breach of Fiduciary Duty............................................................................................... 5
B. Professional Responsibility .................................................................................................... 6

II.

How to Stay Out of Trouble............................................................................................... 7


A. Professional Liability ............................................................................................................. 7
B. Professional Responsibility .................................................................................................. 10

III.

Failing thatWhat To Do Next ....................................................................................... 10


A. Professional Liability ........................................................................................................... 10
B. Professional Responsibility .................................................................................................. 12

IV.

The Last Word .................................................................................................................. 12

I.
A.

The Problem

Professional Liability

The actions of counsel, in and out of the courtroom, can attract allegations of breach of contract,
negligence and breach of fiduciary duty.
The line between negligence and breach of contract can be a bit blurry. The contract will be found
in the retainer agreement, but terms will be implied from the duty of care owed in tort (see, e.g.
Chaster (Guardian ad Litem of) v. LeBlanc, 2007 BCSC 1250 at para. 97).
One distinction is that if there is no loss, there will be no negligence, but if there is a breach of
contract and no loss, nominal damages will be awardedas happened in the Chaster case, supra, and
the Newton and Freemont Development cases (post). Nominal damages may, at one time, have been a
peppercorn or $1.00, but the recent cases indicate that nominal damages will be awarded of $1,000.
See, as well as the cases referenced, Chen v. Wong, 2009 BCSC 465, at paras. 75, 80 & 97, where
$1,000 was awarded for each of two breaches of contract.
As to breach of fiduciary duty, this generally arises in cases of conflicts, breaches of confidence,
benefiting at the expense of the client or other situations in which there is, as was noted by Madam
Justice Southin in Girardet v. Crease & Co. (1987), 11 B.C.L.R. 2d 361 (S.C.) at 361, the stench of
dishonestyif not of deceit then of constructive fraud. A central theme of fiduciary duty is loyalty
to the client/beneficiary (R. v. Neil, [2002] S.C.J. No. 72, 2002 SCC 70).
Professional liability can extend into the courtroom. The concept of barristers immunity from
civil suit was founded in England upon the decision of the House of Lords in Rondel v. Worsley,

3.2.2
[1967] 3 All E.R. 993. The immunity has never been totally accepted in Canada (see, e.g., Demarco
v. Ungaro (1979), 21 O.R. (3d) 673) and has since been limited in England (see Ali v. Disney Mitchell
& Co., [1978] 3 All E.R. 1033).

1.

Negligence

There are many judgments written on what constitutes professional negligence. These excerpts are
from the reasons of Madam Justice Neilson in Newton v. Marzban et al., 2008 BCSC 328:
[294]
They are also in substantial agreement as to the elements that must be
established to succeed in an action for professional negligence. John A. Campion &
Diana W. Dimmer, Professional Liability in Canada, looseleaf (Toronto: Carswell,
2007) at 3-18 [Campion & Dimmer] summarize these as follows:
1.

A duty of care exists between the defendant and the plaintiff;

2.
There has been a breach of that duty in that the defendants conduct is
negligent or in breach of the standard of care required of him;
3.
Damages have been suffered by the plaintiff which have been caused by
the conduct of the defendant; and
4.
That damage is reasonably foreseeable as arising from the defendants
conduct or in other words the damages are not too remote a result of the
defendants conduct.

[297]
The standard of care imposed on all professionals shares a common core,
described in Campion & Dimmer at 3-26:
A professional is required to exercise reasonable care, skill and
knowledge in the performance of the professional service which has
been undertaken. Thus, the professional will be judged by what is
reasonable and appropriate to expect of a professional in the same
calling exercising reasonable care and skill in similar circumstances.
The standard of care is an objective one and it will not be sufficient
to disprove negligence if the professional simply proves that he did
the best that he was able to based on his skill and knowledge in the
circumstances.
[footnotes omitted]
[298]
While that standard is refined by the characteristics and responsibilities
associated with the defendants particular profession, key common principles
nevertheless emerge from the authorities.
[299]
First, the terms of the professionals engagement inherently inform the
applicable standard of care and what is expected from that professional: Nussbaum v.
Rajesky (1988), 3 R.P.R. (2d) 108 at paras. 12-17 (Ont. H.C.), affd (1991), 16 R.P.R.
(2d) 78 (Ont. C.A.); Fasken, Campbell, Godfrey v. Seven-Up Canada Inc. (1997), 142
D.L.R. (4th) 456 at para. 59 (Ont. Gen. Div.), affd (2000) 182 D.L.R. (4th) 315 (Ont.
C.A.); and Krabbendam v. Brito (November 10, 1998), Vancouver C961170, at para.
9.
[300]
Second, a professional will not be found liable for an error in judgment
unless that error was one that an ordinarily competent professional in the same field
would not have made: Nichols v. Warner, 2007 BCSC 1383 at para. 106 [Nichols].

3.2.3
[301]
Third, institutional professional standards or customs provide some
evidence of the standard of care, but are not conclusive: Kripps v. Touche Ross & Co.
(1997), 33 B.C.L.R. (3d) 254 at para. 73 (C.A.).
[302]
Fourth, the standard of care will be judged on the standards in place at the
time of the relevant events, and not with the benefit of hindsight: ter Neuzen v. Korn,
[1995] 3 S.C.R. 674 at para. 47.

With respect to litigation, in Demarco, the Court noted: I find it difficult to believe that a decision
made by a lawyer in the conduct of a case will be held to be negligence as opposed to a mere error of
judgment. But there may be cases in which the error is so egregious that a Court will conclude that it
is negligence. This applies to decisions made in court and in preparation of a case (see generally,
Campion & Dimmer, s. 7.4(f)(iii)(D)).
The general standard of care with respect to lawyers (in this decision it was a family law lawyer, but
there is general application) was set out in Newton, as follows:
[605]
In Millican v. Tiffin Holdings Ltd. (1964), 49 D.L.R. (2d) 216 at 219 (Alta.
T.D.) [Millican], affd [1967] S.C.R. 183, Riley J. provided this often-cited list of a
lawyers obligations:
(1)

To be skilful and careful.

(2)
To advise his client on all matters relevant to his retainer, so far as may
be reasonably necessary.
(3)

To protect the interests of his client.

(4)

To carry out his instructions by all proper means.

(5)
To consult with his client on all questions of doubt which do not fall
within the express or implied discretion left to him.
(6)
To keep his client informed to such an extent as may be reasonably
necessary, according to the same criteria.

It is these terms that will be implied into the retainer contract between the solicitor and the client.
Protecting the interests of the client includes a duty to warn the client of risks in what the client is
doing or in actions that counsel intends to take or not to take. From Newton:
[608]
The duty to warn was discussed by Thackray J., as he then was, in
Graybriar Investments Ltd. v. Davis & Co. (1990), 46 B.C.L.R. (2d) 164 at 179-180
(S.C.). He adopted this statement of the duty to warn from Major v. Buchanan (1975),
9 O.R. (2d) 491, 61 D.L.R. (3d) 46 at 69 (S.C.):
a solicitor has the duty of warning a client of the risk involved in
a course of action, contemplated by the client or by his solicitor on
his behalf, and of exercising reasonable care and skill in advising
him. If he fails to warn the client of the risk involved in the course
of action and it appears probable that the client would not have
taken the risk if he had been so warned, the solicitor will be liable.
[609]
The extent of these duties varies with the sophistication of the client:
Ormindale Holdings Ltd. v. Ray, Wolfe, Connell, Lightbody & Reynolds (1982), 36
B.C.L.R. 378 at 389 (C.A.).

In that regard, note that the standard does not vary, but the duties required by that standard may vary
from client to client, e.g. with brain injuries, lack of sophistication or other unique circumstances.
See, e.g., Chaster, BCSC, para. 40.

3.2.4
Further, as noted by Madam Justice Southin J., in Girardet v. Crease & Co. at 370:
In my view, it is part of the duty of a solicitor not only to give good advice but also to
make his reasons clear to the client. That does not mean writing the client page after
page of legal jargon which, to most clients, is unintelligible. But a client has a right to
know why. How else can she make an informed judgment on the matter at hand?

Although the Law Society Professional Conduct Handbook provisions are not binding on the Court,
they should be considered an important statement of public policy (MacDonald Estate v. Martin,
[1990] 3 S.C.R. 1235, per Sopinka J.).
The Professional Conduct Handbook of the Law Society of BC, in Chapter 3, section 3, provides:
3. A lawyer shall serve each client in a conscientious, diligent and efficient manner so as
to provide a quality of service at least equal to that which would be expected of a
competent lawyer in a similar situation. Without limiting the generality of the foregoing,
the quality of service provided by a lawyer may be measured by the extent to which the
lawyer:
(a)

keeps the client reasonably informed,

(b)

answers reasonable requests from the client for information,

(c)

responds, when necessary, to the clients telephone calls,

(d)

keeps appointments with the client,

(e)

having informed the client that something will happen or that some step will be
taken by a certain date, does not allow that date to pass without follow-up
information or explanation,

(f)

answers within a reasonable time a communication that requires a reply,

(g)

does the work in hand in a prompt manner so that its value to the client is not
diminished or lost,

(h)

prepares documents and performs other legal tasks accurately,

(i)

maintains office staff and facilities adequate to the lawyers practice,

(j)

informs the client of proposals of settlement, and explains them properly,

(k)

discloses all relevant information to the client, and candidly advises the client about
the position of a matter, whether such disclosure or advice might reveal neglect or
error by the lawyer,

(l)

makes a prompt and complete report when the work is finished or, if a final report
cannot be made, makes an interim report where one might reasonably be expected,

(m) practises free of any self-induced disability, for example intoxicants or drugs, which
would interfere with the member's services to the client.

2.

Breach of Contract

As is noted above, even if you do not have a retainer agreement with your client, contractual terms
will be implied. The ones referred to from Milliken would appear to be the minimum (Chaster, supra,
para. 97).
Thus, the obligations on counsel are far reaching. If you want to limit your retainer, you must do so
specifically (in writing) with full knowledge of your client. See, e.g., Bergman v. Williams (1980), 22
B.C.L.R. 317 (S.C.) and Begusic v. Clark, Wilson & Co. (1992), 92 D.L.R. (4th) 273, [1992] 5 W.W.R.
685, (1992), 69 B.C.L.R. (2d) 273, 1992 CanLII 447 (BCSC).

3.2.5
Remember, too, the interplay of contract and tort and that a retainer agreement can limit your tort
obligations. You must be very clear with your client what you are undertaking and what limitations
there are on your retainer, but note the Law Society Rules, 65(3):
3) A provision in an agreement that the lawyer is not liable for negligence, or that the
lawyer is relieved from responsibility to which the lawyer would otherwise be subject
as a lawyer, is void.

3.

Breach of Fiduciary Duty

In Strother v. 3464920 Canada Inc., [2007] S.C.J. No. 24, 2007 SCC 24, the client (Monarch) closed its
business based on Mr. Strothers advice that tax changes ended the tax relief it was founded on. The
client didnt ask later whether it could get back into its business. Mr. Strother asserted that he
therefore had no obligation to advise them when he found out that the business was live and there
was no conflict in his going into that business, even though Monarch was still his client.
As Justice Binnie stated for the majority at para. 42:
Monarchs tax business was in a jam. Strother was still its tax lawyer. There was a
continuing relationship of trust and confidence.: Monarch was dealing with
professional advisors, not used car salesmen or pawnbrokers whom the public may
expect to operate on the basis of didnt ask, didnt tell, and who collectively suffer
a corresponding deficit in trust and confidence. Therein lies one of the differences
between a profession and some businesses.

The primary obligation to the client is one of loyalty. If we consider that duty in the broadest sense, it
can guide decisions made in the course of our retainer. It encompasses other duties, such as
confidentiality and an avoidance of conflicts.
The nature of the duty was discussed, again by Binnie J., in R. v. Neil:
17
While the Court is most often preoccupied with uses and abuses of
confidential information in cases where it is sought to disqualify a lawyer from
further acting in a matter, as in MacDonald Estate, supra, the duty of loyalty to
current clients includes a much broader principle of avoidance of conflicts of interest,
in which confidential information may or may not play a role: Montreal Trust Co. of
Canada v. Basinview Village Ltd. (1995), 142 N.S.R. (2d) 337 (C.A.); Enerchem Ship
Management Inc. v. Coastal Canada (The), [1988] 3 F.C. 421 (C.A.); Jans v. Coulter (G.
H.) Co. (1992), 105 Sask. R. 7 (C.A.); Stewart v. Canadian Broadcasting Corp. (1997),
150 D.L.R. (4th) 24 (Ont. Ct. (Gen. Div.)); Gaylor v. Galiano Trading Co. (1996), 29
B.L.R. (2d) 162 (B.C.S.C.).
18
In Drabinsky v. KPMG (1998), 41 O.R. (3d) 565 (Gen. Div.), where the
plaintiff sought an injunction restraining the accounting firm KPMG (of which the
plaintiff was a client) from further investigating the financial records of a company of
which the plaintiff was a senior officer, Ground J., grouping together lawyers and
accountants, said, at 567:
I am of the view that the fiduciary relationship between the client
and the professional advisor, either a lawyer or an accountant,
imposes duties on the fiduciary beyond the duty not to disclose
confidential information. It includes a duty of loyalty and good
faith and a duty not to act against the interests of the client.
[Emphasis added.]

19
The aspects of the duty of loyalty relevant to this appeal do include issues of
confidentiality in the Canada Trust matters, but engage more particularly three other
dimensions:

3.2.6
(i)

the duty to avoid conflicting interests: Davey v. Woolley, Hames, Dale &
Dingwall (1982), 35 O.R. (2d) 599 (C.A.), and Services environnementaux
Laidlaw (Mercier) Lte v. Qubec (Procureur gnral), [1995] R.J.Q. 2393 (C.A.),
including the lawyers personal interest: Szarfer v. Chodos (1986), 54 O.R. (2d)
663 (H.C.), affd (1988), 66 O.R. (2d) 350 (C.A.); Moffat v. Wetstein (1996), 29
O.R. (3d) 371 (Gen. Div.); Stewart v. Canadian Broadcasting Corp., supra.

(ii)

a duty of commitment to the clients cause (sometimes referred to as zealous


representation) from the time counsel is retained, not just at trial, i.e. ensuring
that a divided loyalty does not cause the lawyer to soft peddle his or her
defence of a client out of concern for another client, as in R. v. Silvini (1991), 5
O.R. (3d) 545 (C.A.); R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.); R. v.
Graham, [1994] O.J. No. 145 (QL) (Prov. Div.); and,

(iii) a duty of candour with the client on matters relevant to the retainer, R. v.
Henry (1990), 61 C.C.C. (3d) 455 (Que. C.A.) per Gendreau J.A., at 465; Spector
v. Ageda, [1971] 3 All E.R. 417 (Ch. D.), at 430; the Canadian Bar Association,
Code of Professional Conduct (1988), c. 5, Commentary 4 - 6. If a conflict
emerges, the client should be among the first to hear about it.

As was noted in MacDonald Estate v. Martin, the fiduciary obligation often impacts areas of both
professional negligence and professional responsibility.

B.

Professional Responsibility

We practice in a self-regulated profession with very high standards of responsibility. We are


continually presented with competing interests. Our interests, other clients interests, the interests of
time and advancing a case expeditiously, the interests of our client in having our full, unfettered
attention and complete disclosure and candourthere are many. There are responsibilities, including
to clients, other counsel, the courts, the Law Society, other clients, creditors, the government and to
defend the rule of law and the independence of the bar and the judiciary. We have sworn oaths,
including to not promote frivolous suits or pervert the law to promote anyones interest. We must
always be alert to balancing these often competing claims on us.
Our responsibilities are defined primarily by the Legal Professions Act, the Law Society Rules, and the
Professional Conduct Handbook. You must be familiar with them.
As counsel we have an obligation to take on our clients foes. From R. v. Lyttle, [2004] 1 S.C.R. 193,
2004 SCC 5, 2004 SCC 5 (CanLII), at para. 66:
Counsel, however, bear important professional duties and ethical responsibilities, not
just at trial, but on appeal as well. This point was emphasized by Lord Reid in
Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), at 227-28, when he said:
Every counsel has a duty to his client fearlessly to raise every issue,
advance every argument, and ask every question, however
distasteful, which he thinks will help his clients case. But, as an
officer of the court concerned in the administration of justice, he
has an overriding duty to the court, to the standards of his
profession, and to the public, which may and often does lead to a
conflict with his clients wishes or with what the client thinks are
his personal interests. Counsel must not mislead the court, he must
not lend himself to casting aspersions on the other party or
witnesses for which there is no sufficient basis in the information in
his possession, he must not withhold authorities or documents
which may tell against his clients but which the law or the
standards of his profession require him to produce.

3.2.7
The tension between those obligations is obvious. Failure to adhere to the standards of the profession
can result in various measures being taken against you. A complaint to the Law Society could result in
disciplinary procedures and ultimately disbarment, see, e.g., Law Society (British Columbia) v.
Ewachniuk, 2003 BCCA 223, 2003 BCCA 223 (CanLII). Your failure to conduct a case in keeping
with the standards of the profession could result in costs being awarded against you personally. See,
e.g., Kent v. Waldock, 2000 BCCA 357, 2000 BCCA 357 (CanLII), but note that the bar is set pretty
high for such an award to be grantedfrom para. 19:
although an order under the British Columbia R. 57(37) may not necessarily
require proof of bad faith, we read Young v. Young and other British Columbia
cases decided thereafter as requiring conduct that can properly be described as
reprehensible or amounting to an abuse of the process of the court. Thus a mere
error in judgment or even an occurrence of negligence, without more, is unlikely to
meet the threshold requirements imposed by the case authorities by which we are
bound in interpreting the Rule.

As lawyers we arguably have an obligation that goes beyond all of the formal rules and requirements
of our profession. Philip Slayton, in an article in the February 2009 edition of the Canadian Lawyer
entitled, Moral Neutrality is No Longer Enough, suggests:
a lawyer, as a well-educated creature of his community, should take into account
the values and well-being of that community when he does his work. Sometimes,
notwithstanding the siren call of billable hours, he shouldnt open a file.

Although he was referring primarily to the problem of solicitors facilitating questionable loans seen
recently in the US and founding part of the recent economic problems there, that advice should be
taken to heart by us all.

II.
A.

How to Stay Out of Trouble

Professional Liability

If you have not read it, and even if you have, but not recently, dig out and read your old copy of Beat
the Clock, Timely Lessons from 1600 Lawyers, a special risk management publication of the Lawyers
Insurance Fund, the Law Society of BC. It is a concise tally of where you can go wrong and how to
avoid it. If you dont have a copy, it is on the Lawyers Insurance Fund website:
http://www.lawsociety.bc.ca/regulation_insurance/insurance/docs/beat-the-clock.pdf
As a professional it is not enough to meet the standard of care of the professionyou must also be able
to prove that you have met that standard. You cannot prevent anyone from suing youbut you can
conduct your practice so as to have the materials in your file to substantiate that your service to your
client was not negligent.
Thus, the first way to stay out of trouble is to take notes, repeat all advice in writing, send engagement
and non-engagement letters, communicate and record that communication. Never assume your client
knows something or has been told something by someone else. Assume that your clients are not
legally literate. Use the precedents on the Law Society website, develop boilerplate letters that can be
adjusted for particular clients and fact patterns, warn clients of limitations repeatedly, warn clients of
potential adverse consequences of actions or of not taking action.
If, for example, you conclude you dont need an expert in a certain areaperhaps because your
judgment is that expertise is not requireddocument your advice to the client in that regard. Dont
just consider the matter and let it droptell the client in writing and let them know the risk, the
cost/benefit or whatever and invite them to instruct you otherwise.

3.2.8
You may believe, e.g., that everyone knows the entitlement to spousal support, but those kinds of
assumptions will cause you to not give your client full advice in situations where it may be critical.
You may want to have a standard form setting out general information on support, custody, access,
mediation and other areas particular to your practice that you routinely provide to your client and
discuss with them. The provision of such information should be noted in the file.
Report periodically to your clients. This is an opportunity to explain to them what the current status
is, what you have done, what you havent done and why and what your strategy and plan is for the
future. Be aware that clients may not understand you. Use simple language and put it in writing so
they can digest it over time.
It may sound like a lot of work, but it is better than losing a lawsuit because you cant prove that you
told a client of the risks and were instructed to proceed, or advised a client on the pros and cons of a
settlement.
As an example, look at the case of Freemont Development Co. Ltd. v. Zipursky, [1983] B.C.J. No. 1451.
In that case, two lawyers were sued for negligence and breach of contract. The trial ran 35 days in
1983and today would likely have gone much longer. In the end, it was found that Mr. Butler had
been negligent and breached his contract with the plaintiff, but, as they were left in no worse position,
only nominal damages of $500 were awarded for breach of contract. Regardless of the good result for
the lawyer, that is not an ordeal that you want to be exposed to.
Some of the comments of Mr. Justice Spencer from that decision are instructive:
74 Part of the plaintiffs case is that Messrs. Butler and Gibson, and through them
Farris and Company, were negligent in the advice they gave or failed to give the
investors at this meeting. Various witnesses differed in their recollection of how
many people were at the meeting but I am satisfied the premises provided were
grossly overcrowded. Apparently little thought was given by the solicitors to how
many people might attend. Surprisingly, no notes were kept of what was said there. I
heard from thirteen witnesses who were present. Their recollection of what Mr.
Butler said some six years ago varies markedly between them.
80 It would have been wiser if Mr. Butler had written each investor after the
September 24 meeting to record the decisions made there. It should have been
obvious that some were unsophisticated people and it is apparent now that not
everyone took the same understanding away from that meeting.

From para. 107:


Generally, the solicitor is not responsible to advise on business decisions and Mr.
Butler made it clear at the November 10, 1976 meeting that he left that entirely to
each investor. But within the province of the law the solicitor is the expert. Unless
limited expressly or by implication in the terms of his retainer, he has a duty not
only to carry out his clients instructions, but to examine his clients problem and to
advise him on the law and its application to the problem in a practical way so that
the client can make an informed decision. When an uninformed client presents a
problem to a solicitor and asks him to implement a particular solution, it is not
enough for the solicitor simply to execute those instructions. He owes a duty to give
some thought to the problem and to advise whether that solution is lawful and what
its result at law will be.

I respectfully agree to what was said by Ruttan J. in Tracy et al. v. Atkins (1977) 83
D.L.R. (3d) 46 at 54:
Failure to give advice or direction when the circumstances call for
such, is as much a breach of duty as when wrong advice is tendered.

3.2.9
Somake notes, communicate with every client, advise on matters requiring legal insight even if your
client doesnt askthey may not know enough to ask. You cannot rely on your client in that sense to
limit your obligation. Use simple language and report in writing. If you do not feel confident to
advise your client in the situationdo something about it. Dont just assume that everything will be
alright, that it wont matter. Those are danger signals and you should heed them.
The second thing that is critical in avoiding liability is managing client expectations. It is one thing to
argue your client should be entitled to $1 million, but it is another thing altogether to have a client
who expects that you will get $1 million. Or, you may have a client who is convinced that, e.g., assets
in a family matter have been hidden away offshore. It may be true, but there may be no way to prove
it short of spending more than the sum total of the family assets. You must from the outset
communicate and control your client and ensure that his or her expectation of the work that can be
done and the result of the lawsuit is realistic.
If you have a client with whom you cannot communicate or who has unrealistic expectations, it would
be in your interest to get off the file or to not take on the retainer in the first place. Look for the
indicia of a problem clientsome include multiple past lawyers, conspiracy theories and multiple
lawsuits. If you see those, consider seriously whether you can devote the time that this client may
require in order to properly communicate and manage expectations.
One area that all lawyers should be constantly concerned with is limitations. You know there are a
multitude of them. Every time you consider a new client, one of the first things you should consider
are limitationswhat kind of claim is it? What limitations apply? What parties must be named?
Have a cheat sheet of limitations handy so that you can review it and consider whether any special
limitations apply. You can download one from the Lawyers Insurance Fund website:
http://www.lawsociety.bc.ca/regulation_insurance/insurance/docs/list-limitations.pdf
Have systems in place that all lawyers and staff recognize, are trained to use and do use without fail.
Staff should be encouraged to consider limitations and question if files do not have limitations
notations on them or BFs for important datesincluding the expiration of judgments.
It is not just limitations that need BFs. Once a litigation file is opened there should be periodic
reviews to ensure that all necessary steps have reminders. There is no point in having a trial date if
you dont, e.g., have a reminder to get an expert well in advanceso that you can plan your case and
so that your expert report can be tendered in time to preserve the trial date.
If you transfer a file to a new lawyer, or get off a file for any reason, ensure that any limitation issues
are clearly flagged along with the consequences of missing the limitation. Similarly for any other
relevant datessuch as scheduled discoveries and trial dates.
The last area I will deal with is knowing the practice, procedure and law in whatever area and arena
you are dealing with. You are required to have this proficiency at law and pursuant to the Professional
Conduct Handbook, which in Chapter 3, section 1 provides:
1. With respect to each area of law in which a lawyer practises, he or she must
acquire and maintain adequate:
(a)

knowledge of the substantive law,

(b)

knowledge of the practice and procedures1 by which that substantive law can
be effectively applied, and

(c)

skills to represent the client's interests effectively.

[amended 03/03]
Annotations

3.2.10
2. Before accepting a retainer, a lawyer must be satisfied that he or she has the ability
and capacity to deal adequately with any legal matters to be undertaken.
[amended 03/03]

If you cannot take the time to fully acquaint yourself with a new practice area, new procedure, new
court rules, or new jurisdictionwithout charging your client for your educationthen dont take the
file.
If you find yourself confronted with an area that is unfamiliar to you, ask questions, take CLE and
other courses, use CLE, CBA and other practice resources, phone colleagues, read, take courses,
research the law, but whatever you do, dont assume that you know more than you do.

B.

Professional Responsibility

The first step in staying out of trouble is to know what your obligations are. To do that you must
engageyou must consult the Act, Rules and Handbook and other Law Society resources regularly.
There are many practice aids on the website that can assist you in staying clear of ethical problems.
Note that the Law Society of BC website now contains an annotated version of the Professional
Conduct Handbook, with annotations from case law and discipline hearings. See the website:
www.lawsociety.bc.ca
You can always call a Law Society practice advisor, in confidence, if you have an issue about which
you are uncertain. Check the website for contact details, but there are three advisors currently, David
Bilinsky for practice management advice (he is particularly conversant with technological solutions),
Barbara Buchanan for practice and ethics advice and Jack Olsen for ethical advice. They will provide
you with very quick advice and opinions on hypothetical scenarios when you have an ethical or
practical dilemma.
Additional resources include the Canadian Bar Association, Code of Professional Conduct, and its
Conflicts of Interest Final Report and Toolkitall available on the CBA website: www.cba.org
You can also avail yourself of the facilities provided by other professional organizations. Experienced
counsel are always ready to assist with problems that arise in practice. Network at legal functions.
Learn who practices in your area. Another area for interaction with colleagues on issues is at CBA
section meetings. If you have an area that you consider problematic, ask your section leaders to get
someone in to speak on it.
The second step in staying out of trouble is to engage your moral compass.
You must always remember you are a member of a profession. You have chosen a noble calling that
demands more from you legally and ethically than perhaps any other. You must always take the time
to take the long view. If something offends your moral compass, dont do it. If you have the slightest
concernlisten to that and get assistance.
Keep your ethical standards high. Remember why you wanted to become a lawyer in the first place.

III. Failing thatWhat To Do Next


A.

Professional Liability

If you have made a mistake that could result in a loss to your client, report it to the Lawyers Insurance
Fund. I cannot stress this enough. Lawyers who try to fix their own mistakes often end up in worse
problems.

3.2.11
The entire force of the Lawyers Insurance Fund will rally to help you if you let them. They will
appoint counsel to repair errors. They will tell you what you should and should not do in situations
where there may have been an error. They will represent you or appoint outside counsel to represent
you if you are sued.
Providing your error is covered (fee issues, e.g., are not covered) your maximum exposure is a $5,000
deductible and a $1,000/year insurance assessment for five years. If no damages are paid, you do not
pay either the deductible or the assessment, even if thousands of dollars are spent on your defense.
The Professional Conduct Handbook, chapter 4, provides:
Errors and omissions
5. A lawyer must comply with the terms of each professional liability insurance
policy.
[amended 01/94]
5.1 If, in respect of a matter in which the lawyer is or was engaged, the lawyer has a
reasonable apprehension that an error or omission:
(a)

has been made,

(b)

is one for which the lawyer is or may be responsible, and

(c)

is or may be damaging to the client,

then the lawyer must promptly:


(d)

inform the client of the facts of the error or omission, without admitting legal
liability, and

(e)

recommend that the client obtain independent legal advice.

You have an insurance policy. You pay a significant amount of money for that policy. It is updated
annually. You should read it.
The policy requires that notice be given of any error or circumstance from which a claim might arise.
It doesnt have to be a valid claim.
The policy provides:
4. NOTICE OF CLAIM OR SUIT
4.1 If you become aware of an error or any circumstance which could reasonably be
expected to be the basis of a claim, however unmeritorious, you will give written
notice immediately, along with the fullest information obtainable, during the policy
period to:
Lawyers Insurance Fund
5th Floor, 845 Cambie Street
Vancouver, BC V6B 4Z9
Attention: Susan I. Forbes, QC, Director of Insurance
Fax: 604-682-5842
Such notice is necessary to settle, or defend, any claim or anticipated claim against you
which may be covered under this policy.
4.2 If a claim is made or suit is brought against you, you will forward immediately to
us every demand, writ of summons or other process with the fullest information
obtainable.
4.3 We may deem notice of an error, claim or potential claim given by a third party
to be notice given by you.

3.2.12
The reporting guidelines are on the Lawyers Insurance Fund section of the Law Society website:
http://www.lawsociety.bc.ca/regulation_insurance/insurance/guidelines.html
You can, however, simply pick up the phone and call one of the claims counsel for advice. A list of
the areas that the claims counsel deal with is on the website under the staff section.

B.

Professional Responsibility

As noted, there can be many serious repercussions from ethical lapses. If you have made an ethical
mistake that may result in damage to a client, you should report it to the Lawyers Insurance Fund.
If you are not sure what to do, consult the resources set out above for direction, including asking
about independent counsel that you can consult to discuss the problem.
There is an overview of the complaint and discipline process on the Law Society website. If you are
involved with a complaint on anything other than a minor matter, you should consult counsel. Many
lawyers will represent other counsel on a pro-bono basis.

IV. The Last Word


Being a lawyer is hard and demanding. Lawyers have a notoriously high incidence of depression and
substance abuse. Many errors and ethical problems are caused or exacerbated by these personal
problems.
Learn the signs and symptoms of incipient problems. Are your ethical standards slipping? Are you
falling behind at work? Are you reluctant to go to work? Do you snap at your colleagues and staff?
Are you drinking more? Sleeping less? Sleeping more? Are you exhausted, fed up, burnt out?
If you find yourself going down that road, get help. There are lots of understanding people out there
who will come to your aid.
The Lawyers Assistance Program consists of volunteers from the profession who have experience with
such issues. From the Law Society website:
The Lawyers Assistance Program (LAP) provides confidential support, counselling,
referrals and peer interventions for lawyers, their families, support staff and articled
students who suffer from alcohol or chemical dependencies, stress, depression or
other personal problems.

You can find out more on their website: www.lapbc.com


You can also utilize the professional resources at Interlock, funded by the Law Society. From the Law
Society website:
Interlock offers personal counselling and referral services that are confidential and
available at no cost to individual BC lawyers and articled students and their
immediate families.
Interlock can help with personal, relationship and family problems, stress
management, substance abuse or work-related concerns. These services are funded by
the Law Society.

The Interlock website is: www.interlock-eap.com


You need to recognize from the outset that the profession has these dangers and be ready and willing
to address them if, or perhaps when, they arise.