200-Pirie - Law 360 - Midterm

LAW 360 – ETHICS – PROF. PIRIE – SPRING 2015 – M.
HOUSE
Table of Contents
THEORIES, CONCEPTS, SOURCES OF LEGAL ETHICS...............................................................................................................6
TRANSPARENCY TEST........................................................................................................................................................6
A. Philosophy of Ethics......................................................................................................................................................6
B. What Does it Mean to be an Ethical Lawyer?................................................................................................................6
1. Zealous Advocacy (Loyalty)........................................................................................................................................6
Alice Wooley – “In Defence of Zealous Advocacy”.......................................................................................................7
R v Neil – the elements of the Duty of Loyalty...............................................................................................................7
Szarfer v Chodos – lawyer must not use client information for their own benefit.........................................................7
2. Moral Agent in Pursuit of Justice...............................................................................................................................7
R v Murray – fierce loyalty to a client may result in usurping justice.............................................................................7
David Luban – “The Adversary Excuse”.........................................................................................................................7
3. Personal Integrity.....................................................................................................................................................7
Trevor Farrow – “Sustainable Professionalism”............................................................................................................7
Spalding v Zimmerman – unacceptable to act in best interests of client if it causes danger to opponent.....................8
LAWYER-CLIENT RELATIONSHIP............................................................................................................................................8
A. Formation of the Relationship......................................................................................................................................8
1. Advertising, Fee Sharing and Solicitation...................................................................................................................8
Advertising....................................................................................................................................................................8
Fee Sharing.................................................................................................................................................................... 8
Solicitation.....................................................................................................................................................................8
Merchant – Solicitation that is exploitive is contrary to the model code (misleading, bad taste, offensive)..................9
2. Choice of Client.........................................................................................................................................................9
Moral Non-Accountability versus “Taking it Personally”...............................................................................................9
Client Selection and Discrimination...............................................................................................................................9
3. Accessibility of Legal Services...................................................................................................................................9
Administration of Justice...............................................................................................................................................9
Pro Bono...................................................................................................................................................................... 10
4. Triggering the Lawyer-Client Relationship...............................................................................................................10
Descoteaux v Mierzwinski – relationship arises from “first dealings” with office to retain advice..............................10
B. Competence and Quality of Service............................................................................................................................10
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LAW 360 – ETHICS – PROF. PIRIE – SPRING 2015 – M. HOUSE
1. Competence and Quality Generally.........................................................................................................................10

Nova Scotia Barristers v Richey – a “predictable” “pattern of poor judgement” = incompetence...............................11
Law Society of Alberta v Syed – another example.......................................................................................................11
2. Cultural Competence...............................................................................................................................................11
R. v Fraser – failing to challenge jury selection in case where race is a major factor = incompetence.........................11
3. Continuing Legal Education.....................................................................................................................................11
C. Termination of the Lawyer-Client Relationship...........................................................................................................11
1. The Retainer............................................................................................................................................................11
2. Withdrawal: Obligatory versus Optional.................................................................................................................11
Brace v Canada (Customs and Revenue Agency)- the lawyer-client relationship is like a marriage...........................12
Alice Woolley’s “The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian
Gomeshi and Legal Ethics” – Issues about Withdrawal should be assessed in light of client dignity, access to justice
.................................................................................................................................................................................... 12
3. Court Approval of Withdrawal.................................................................................................................................12
R v Cunningham (SCC)- where court has authority to decline application for withdrawal (...not for ethical)..............12
4. Whistleblowing, Up the Ladder Reporting, Noisy Withdrawal................................................................................13
DUTY TO PRESERVE CLIENT CONFIDENCES.........................................................................................................................13
A. Distinctions, Definitions, Rationale.............................................................................................................................13
DISTINCTION and DEFINITION.....................................................................................................................................13
RATIONALE.................................................................................................................................................................. 14
Proulx & Layton “ Ethics and Canadian Criminal Law”.................................................................................................14
EXCEPTIONS TO THE DUTY OF CONFIDENCE...............................................................................................................14
1. The “Crime/Fraud Exception”..................................................................................................................................14
Descoteaux v Mierzwinski (SCC)- lawyers do not need to keep communications for a criminal purpose in confidence
.................................................................................................................................................................................... 14
2. The “Public Safety Exception”.................................................................................................................................14
Smith v Jones (SCC) - duty of confidence over-ridden by public safety concerns in some circumstances...................14
3. The “Innocence at Stake Exception”........................................................................................................................14
R v McClure (SCC)- fairness to accused may over-ride duty of confidence in some circumstances..............................14
4. Access to materials under Access Act &The Rule in Descoteaux – “Absolute Necessity”........................................14
Goodis v Ontario (Ministry of Correctional Services)- access must be absolutely necessary in order to achieve the
ends sought by the legislation.....................................................................................................................................14
5. Access to materials by Law Society under the Legal Professions Act.......................................................................15
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Law Society of Saskatchewan v Merchant - The legislative intent of the Legal Profession Act allows law society
access to confidential materials..................................................................................................................................15
ETHICS IN ADVOCACY..........................................................................................................................................................15
A. Visions of the Advocate...............................................................................................................................................15
B. Ethics in Pre-Trial Procedures......................................................................................................................................15
1. Pleadings................................................................................................................................................................. 15
DCB v Zellers Inc (1996) – it is unethical to make unmeritous threats to sue...............................................................15
2. Discovery................................................................................................................................................................. 15
Grossman v Toronto General Hospital – parties have ethical obligation to make careful search of all relevant
documentation; counsel must make inquiries.............................................................................................................16
3. Negotiation (and ADR).............................................................................................................................................16
C. Ethics at Trial...............................................................................................................................................................16
1. Witness Preparation................................................................................................................................................16
Sanctions for misconduct in witness preparation........................................................................................................16
R v Sweezey - Potential avenues for sanctioning misconduct of an advocate.............................................................16
2. Cross-Examination...................................................................................................................................................16
R v Lyttle (2004 SCC) – the scope of an advocate’s ethical conduct in the context of cross-examination of the
opposing witness: counsel granted a wide latitude wrt x-examination, so long as it is done in good faith; NO
baseless claims tho......................................................................................................................................................16
R v R (AJ) (1994 ONCA) – the scope of the crown counsel’s ethics in the context of crow-examining the accused –
must not be improper, abusive, based on negative personal opinion..........................................................................17
3. Representation About the Law................................................................................................................................17
GM v Isaac Estate – silence wrt to a binding precedent is unethical...........................................................................17
4. Advocacy and Civility...............................................................................................................................................17
Alice Woolley - “Does Civility Matter?”.......................................................................................................................17
Schreiber v Mulroney – lying to opposing counsel is unethical....................................................................................17
Law Society BC v Laarakker (hearing panel)- unethical to make discourteous personal remarks re another lawyer...18
DUTY OF LOYALTY AND CONFLICTS OF INTEREST................................................................................................................18
A. Client-Client Conflicts..................................................................................................................................................18
1. Duties to Former Clients..........................................................................................................................................18
MacDonald Estate v Martin (SCC) – conflict is based on impartation confidential info TWO-PART TEST:...................18
2. Duties to Current Clients.........................................................................................................................................19
R v Neil (SCC)- articulation of duty of loyalty; conflict is based on loyalty. Bright line TEST.........................................19
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3. Former Client Conflicts............................................................................................................................................19

Strothers v Monarch (SCC)- putting personal business interests before client interests is breach of duty of loyalty. . .19
Wallace v CN(2011)– justification of the professional litigant exception on duty of loyalty in Neil, based on
sophistication, resources; TEST for when exception to Neil’s Bright Line applies........................................................20
B. Lawyer-Client Conflicts................................................................................................................................................20
Stewart v CBC – breach of duty of loyalty (fiduciary duty) to exploit former client for self-promotion/financial
interest........................................................................................................................................................................ 20
Law Society of Upper Canada v Hunter (hearing panel) – sexual relationship with client has inherent danger
professional misconduct, potentially not reconcilable by consenting to conflict (MC 3.4 and commentary).............20
COUNSELLING AND NEGOTIATION......................................................................................................................................21
A. Counselling.................................................................................................................................................................. 21
1. Counselling and Illegal Conduct...............................................................................................................................21
Law Society of Upper Canada v Sussman (discipline committee)- counselling client to breach court order is
misconduct.................................................................................................................................................................. 21
2. Other Issues:............................................................................................................................................................21
a) Deceiving Clients.....................................................................................................................................................21
b) Giving Non-Legal Advice:.........................................................................................................................................22
c) Error in counselling client that threatens client’s position......................................................................................22
d) Encouraging Compromise.......................................................................................................................................22
e) A cautionary tale of ZA in Counselling.....................................................................................................................22
David Luban. “Tales of Terror: Lessons for Lawyers from the “War on Terrorism” – Role of the ZA unacceptable in
counselling. LITMUS TEST ask yourself: would my opinion be the same if client wanted opposite outcome............22
B. Negotiation................................................................................................................................................................. 22
1. Competence in Negotiation.....................................................................................................................................22
2. Regulation of Negotiation........................................................................................................................................23
Law Society of Newfoundland and Labrador v Regular (2005) – professional misconduct to calculatedly mislead and
conceal material facts.................................................................................................................................................23
Old Provision of the Alberta Code prohibited lying in negotiation (REPEALED):..........................................................23
American Bar Ass’n Code prohibits lying in negotiation:.............................................................................................23
3. Duty to Counsel Settlement.....................................................................................................................................23
4. Duty not to Threaten Criminal Proceedings............................................................................................................24
ETHICS IN CRIMINAL LAW PRACTICE...................................................................................................................................24
A. Counsel’s Dual Role in the Adversary System.............................................................................................................24
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B. Ethical Duties of Crown Counsel..................................................................................................................................24

1. Duty to Seek Justice in the Public Interest...............................................................................................................24
2. Duty of Full Disclosure.............................................................................................................................................24
R. v Stinchcombe (SCC) – general duty of crown disclosure, though not absolute – subject to crown discretion........24
Krieger v Law Society of Alberta – issues of crown discretion can be processed by law societies but not the courts...25
3. Duty to Call All Material Witnesses.........................................................................................................................25
R v Cook – crown does not have a duty to call material witnesses..............................................................................25
4. Overzealous Advocacy.............................................................................................................................................25
R v Boucher(1954)- crown should act as investigators, ministers of justice, not as over-zealous advocates...............25
C. Ethical Duties of “Officers of the Court” (both crown and defence)............................................................................25
Rondel v Worsely – modern articulation of duties of officers of the court...................................................................25
D. Ethical Duties of Defence Counsel..............................................................................................................................25
1. Duty to Client...........................................................................................................................................................25
2. Defending the Guilty Client and the fine line of not Misleading the Court..............................................................26
R v Tuckiar (1934 Aus.) – unethical to state that you do not believe your client/breach confidence...........................26
 Aboriginal man acquitted of murder charge after counsel announced in court that he believed his client was
guilty and so had lied to him and could not represent him, and in doing so breached confidence by announcing
privileged communications between himself and his client........................................................................................26
3. Taking Custody and Control of Real Evidence.........................................................................................................26
4. Negotiating a Guilty Plea and Sentence...................................................................................................................27
R v K(s) – an accds may not enter “plea of convenience” unless they are prepared to admit mental/factual elements
of the offence..............................................................................................................................................................27
FUTURE OF THE LEGAL PROFESSION – FRED HEATON GUEST LECTURE..............................................................................27
The role of the CBA.........................................................................................................................................................27
Evolving face of the Legal Profession..............................................................................................................................27
The CBA Legal Futures Initiative Report– what is it?.......................................................................................................28
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THEORIES, CONCEPTS, SOURCES OF LEGAL ETHICS

TRANSPARENCY TEST
You should ask yourself always, would you be comfortable with your actions and decisions being transparent? Can
you justify your actions and decisions if you knew that everyone would be fully aware of them?
A. Philosophy of Ethics
1. Virtue Ethics: Ethical actions arise where the person both possesses the virtue and exercises practical
judgement
2. Utilitarian: The most ethical action is the one that is likely to do the most good (Consequentialism)
3. Kantian Deontology: the only principles which should guide your actions are those which could also hold as
universal law, that is, those that could apply to every other free reasoning person
4. Post-Modernism: that the world is unknowable; any description of the world is derived from the subjective
reality of the individual. Ethical decisions must be made through individual judgement and moral intuitions
5. Pluralism: there are various values and that there are various ways of identifying which values are important.
B. What Does it Mean to be an Ethical Lawyer?
The code is only a guide and additional sources of ethical laws exist but are not present in the Code including case law
and legislation, law society disciplinary decisions, and principles or “norms” of the profession.
 2.1 Canons of Legal Ethics
 These Canons of Legal Ethics in rules 2.1-1 to 2.1-5 are a general guide and not a denial of the existence
of other duties equally imperative and of other rights, though not specifically mentioned. A version of
these Canons has formed part of the Code of Professional Conduct of the Law Society of British Columbia
since 1921. They are included here both for their historical value and for their statement of general
principles that underlie the remainder of the rules in this Code.

 A lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient,
honourable and learned profession.
 In these several capacities, it is a lawyer’s duty to promote the interests of the state, serve the cause of
justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in
relations with other lawyers and demonstrate personal integrity
 The law society have broad general powers to prohibit the actions of its membership, (such as
prohibiting the type of advertising it allows.) Decisions are based on the concern about lawyers conduct
contrary to the best interests of the public that may bring the profession into disrepute (Jabour)
1. Zealous Advocacy (Loyalty)
The role of a lawyer is that of neutral partisanship; their role justifies their actions:
“the role of the lawyer is not to substitute her moral judgement for that of the client, nor is it to simply do the client’s
bidding regardless of what the legal system itself requires. Instead, the lawyers obligation is to assist her client to pursue
the client’s legal ends and to do so in a manner consistent with what the legal system itself requires” (wooley et al)
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Alice Wooley – “In Defence of Zealous Advocacy”

o The role justified because were the lawyer to decide what the client may do instead of simply assisting the client
in meeting her ends, the lawyer will have usurped the law’s function in resolving disagreement.
o This role allows greater access to justice – the lawyer is the means by which the client accesses civil compromise
o ROLE justification: If the role is morally justified (which it is), then so to is the act.
o However, it does not solve the moral complexity this may cause for lawyers on an individual level
R v Neil – the elements of the Duty of Loyalty

1) The duty to avoid conflicting interests 2) The duty of commitment to the client’s cause 3) A duty of candour
Szarfer v Chodos – lawyer must not use client information for their own benefit
 Lawyer slept with client’s wife, after learning of vulnerabilities of marriage and client’s psychological issues.
2. Moral Agent in Pursuit of Justice
 Only focussing on loyalty to the client may be to blame for the moral malaise and unethical conduct within the
profession
 A lawyer who focuses exclusively on the interests of her client may improperly lose sight of other moral values
R v Murray – fierce loyalty to a client may result in usurping justice

 Lawyer hid the infamous “Bernardo” tapes showing participation of Homolka in rape and assault of victims
 (NOT GUILTY however, b/c Murray lacked mens rea – didn’t know what was on tapes/unaware of plea bargain)
David Luban – “The Adversary Excuse”

 ZA says that problems are therefore systemic problems and not individual problems, absolving individual wrongs
with role justification and “truth-seeking” function of lawyers. The complexity of the institution should not
absolve lawyers from immoral acts.
 Note the distancing of ZAs from the Nazi Germany example
 Fetishism of Tradition: merely enduring a system that is doing an “ok” job. Problematic because we are using
an institution that is “mediocre” to justify actions.
3. Personal Integrity
Singular, normative approaches may not fully capture the moral complexity of the legal and ethical framework that
governs Canadian lawyers. Integrity is the response to the problem of conflict between professional and personal
morality.
Trevor Farrow – “Sustainable Professionalism”

 Traditional ZA lawyering seen as making “pact with the devil”
 Modern discourse challenge the centrality of unqualified loyalty to client interests, moving away from the
“hired guns” model of lawyering
 Emerging modern approach seen as unrealistic in practice, however, this argument is incorrect. It is not
unrealistic, it is just more complex:
o “By moving beyond the centrality of the client’s interest as championed by the dominant model, instantly
we open ourselves up to competing and potentially irreconcilable interests….we need to live in a world
of those complexities, not in a world of fictional simplicity”
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Spalding v Zimmerman – unacceptable to act in best interests of client if it causes danger to opponent
 Lawyer withheld medical report of Ps that showed P had aortal aneurysm (imminent danger of death) that P
didn’t know about. Judge set aside the settlement on this basis
LAWYER-CLIENT RELATIONSHIP
A. Formation of the Relationship
 Core dilemma: is the tension between the two versions of the lawyer: beneficiaries of a monopoly (obligation to
ensure accessibility) vs business persons (normal rules of free market)
1. Advertising, Fee Sharing and Solicitation
 “ ...a lawyer must make services available...” (Model Code)

 And also, they must not, in offering legal services, do so in a manner that is misleading, coercive, harassing,
exploitive, or in a manner that brings the profession into disrepute (Model Code)
Advertising
 May market services so long as they are true, not misleading, confusing, deceptive, and they are in the best
interests of the public and of a high standard of professionalism. (Model Code)
 can use word aggressive to advertise services (BC Code)
 may advertise fees so long as they are reasonable, states other amounts like disbursements in addition to the
fees, and the lawyer strictly adheres to those fees (Model Code)
Fee Sharing
 lawyer must not share, split, divide fees with a person who isn’t a lawyer (Model Code)
o does not apply to partnership agreements that allow fee sharing, interprovincial law frorms
o RATIONALE: non-lawyers are not held to the same legislated ethical standard; it may create a exploitive
situation for potential clients.
 section doesn’t prevent a lawyer from engaging in promotional activities (MC Commentary)
 if a lawyer refers a matter to another lawyer, may charge a referral fee so long as it is reasonable and the client
is informed of this fee. (Model Code)
Solicitation
 May make legal services “available to the public in an efficient and convenient manner that will command
respect, confidence and by means that are compatible with the integrity, independence and effectiveness of the
profession” (Model Code)
 “marketing activities” (includes any communication or promotion with or towards a prospective client) must
not be: false, inaccurate, capable of misleading, in bad taste, offensive, such as that it would be inimical to the
best interests of the public or tending to harm the standing of the legal profession (MC)
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Merchant – Solicitation that is exploitive is contrary to the model code (misleading, bad taste, offensive)
 Merchant sent letters to res school survivors he didn’t know that stated that almost everyone was abused
culturally and implied they had “nothing to lose, did not disclose length and rigours or magnitude of a trial and
requested that recipients give him other people’s information on a confidential basis. Held to be unlawful.
2. Choice of Client
Core dilemma: Obligation to provide legal access vs right to decline representation (both in the MC)
Moral Non-Accountability versus “Taking it Personally”

 Moral non-accountability emphasized the structural dimensions of the lawyer’s role as lawyers being morally
non-accountable.
 Taking it personally entails that lawyers must take personal responsibility for their choice of clients, strategies
 The middle ground - Proulx and Layton (recommendations for crim defence lawyers):
o Use discretion
o Personal distaste means representation will suffer
o Adopt the following to present the quality of representation:
 Hold a sincere belief in representation
 Repugnance should relate to the content of rep and not client herself
 Be slow to consider public opinion
 Consider importance of representation
 Consider how likely client can find rep elsewhere
 Private opinion of guilt is irrelevant
 Cannot discriminate on prohibited grounds
 You can hold a profound moral objection and still represent someone
o If you cant represent a client, you should help them find a new one for free
 The middle ground – Hutchinson
o Lawyers owe it to their clients to have a conversation about the ethical boundaries.
o Not a one way lecture, but an engaged conversation
o Based on the premise that clients are moral persons and are capable of engaging in debate and changing
Client Selection and Discrimination

 Despite the existence of a general right to decline representation (MC Commentary) , lawyers are subject to
anti-discrimination norms:
o Principles of human rights law and related case law apply to this code rule. (MC 5.03(1))
o Terms in this code rule have the same meaning as in HR legislation. (MC 5.03(2))
o A lawyer must not discriminate against any person. (MC 5.03(5))
3. Accessibility of Legal Services
Core Dilemma: tension between provisions encouraging access and for right to decline representation (MC)
 “the ethical question of client selection is inextricably linked to the ethical question of access to justice”
 AtoJ is getting more difficult rather than less difficult b/c of:
o Legal fees
o Sheer complexity of the law
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Administration of Justice
 A lawyer must encourage public respect for and try to improve the administration of justice. (MC 4.06)
 “Admission to and continuance in the practice of law implies, on the part of a lawyer, a basic commitment to the
concept of equal justice”. (MC Commentary)
Pro Bono
 Law Society encourages lawyers to do pro bono work to adhere to the spirit of access to justice. (MC s 3.01(1))
 There is a tension between access to justice and the right to decline representation
 The current permissive approach to pro bono is “ethically anemic” because there is no real duty or obligation
imposed
4. Triggering the Lawyer-Client Relationship
 Definition of “client” provides that the relationship is triggered consultation occurs and the lawyer renders or
agrees to render legal services, OR having consulted a lawyer, the person concludes that the lawyer has agreed
to render legal services- MC
 BUT: communications with lawyer or her office and/or staff = relationships and still subject to privilege
Descoteaux v Mierzwinski – relationship arises from “first dealings” with office to retain advice
 Application for legal aid is subject to privilege because the relationship was formed from filling out the app
B. Competence and Quality of Service
1. Competence and Quality Generally
QUALITY OF SERVICE
Model Code: “Quality of Service” – lawyer has a duty to provide courteous, thorough and prompt service.
COMPETENCE
Model Code: “competent lawyer” means a lawyer who has and applies relevant skills, attributes, and values in
a manner appropriate to each matter undertaken on behalf of a client including
Knowledge of legal principles, substantive law relevant to area of practice
Investigates facts, identifies issues and client objectives, advises client on action
implements, chosen course of action through the application of appropriate skills, including,
(i) legal research,
(ii) analysis,
(iii) application of the law to the relevant facts,
(iv) writing and drafting,
(v) negotiation,
(vi) alternative dispute resolution,
(vii) advocacy, and
(viii) problem-solving ability,
communicates at all stages of a matter in a timely and effective manner
working conscientiously, diligently, and in a timely and cost effective way
Complies with Code
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recognizing limitations in one’s ability to handle a matter or some aspect of it

managing one’s practice effectively,
pursuing appropriate professional development
adapts to changing professional requirements, standards, techniques, and practices.
Nova Scotia Barristers v Richey – a “predictable” “pattern of poor judgement” = incompetence

 Lawyer guilty of professional incompetence related to a complant that he failed to meet clients instructions,
didn’t advise client properly, didn’t obtain and disclose documents, failed to commence discoveries, failed to
respond to communication, didn’t maintain files, didn’t provide full and timely disclosure of medical evidence.
 Good lawyering skills on some files is not a defence to incompetent lawyering on others
Law Society of Alberta v Syed – another example

 Member reprimanded b/c spent insufficient time interviewing client, failed to consult client, unprepared for trial
,did not adequately consider witness statements.
2. Cultural Competence
Nothing explicit in the code but implicit in Principle 1 (Integrity) and Principle 5.03 (Harassment and Discrimination)
R. v Fraser – failing to challenge jury selection in case where race is a major factor = incompetence
 Court held that accused did not receive fair trial - as his lawyer’s representation fell below what is reasonably
expected of a lawyer, including: took a sworn affidavit from accd that was not necessary and gave ammo to the
crown, failed to interview key corroborating witnesses, did not prep the accd for X examination, and did not
challenge the jury selection, as was his right based on black accd and white alleged victim.
3. Continuing Legal Education
 Compulsory as of 2010 – “Continuing Professional Development”(CPD)

o Justifications: other analogous profession have equivalent; will help lawyers keep abreast of
developments and changes in Canadian society, technology pertinent to job
C. Termination of the Lawyer-Client Relationship
1. The Retainer
 Lawyer-client relationship is primarily contractual in nature

 Termination may be explicit or implied
 Conflicts of interest can arise where lawyer is retained by two parties who may have competing interests.
o The best way to avoid an ethical problem is to explicitly terminate one of the relationships.
o This may cause some problems, as clients perceive to have been “dumped”. Often clients retain
lawyers over long periods of time for various matters, it is a ongoing relationship, so explicit termination
can seem harsh. Necessary however.
2. Withdrawal: Obligatory versus Optional
 OBLIGATORY
o MC s 2.07(7):
 If discharged by client
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 If client persists on instructing lawyer contrary to ethics

 Lawyer is not competent to handle the matter
o MC s 4.01 Lawyer must represent the client honourably, with candour, fairness, respect
 OPTIONAL
o MC s 2.07(2) If there is a serious loss of confidence, the layer may withdrawal
 Must have justificable cause, like the client has lied to the lawyer, or is persistently
unreasonable or uncooperative – Commentary
o MC s 2.07(3) If client fails to pay up
 In such circumstances, lawyer must ensure that client has enough time to retain other counsel
Brace v Canada (Customs and Revenue Agency)- the lawyer-client relationship is like a marriage
Alice Woolley’s “The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian
Gomeshi and Legal Ethics” – Issues about Withdrawal should be assessed in light of client dignity, access to
justice
 Client Dignity: To decline representation tells an accused that their story is so invaluable that its not worth
hearing. Even though Jian likely lied to the firm, the withdrawal of services is optional under the Code (“serious
loss of confidence”). Doesn’t require withdrawal.
 Access to Justice: The broader social significance of this case is Access to Justice; declining to represent Gomeshi
would deprive him of access to justice
 The Ethical Tension: the issues ($50M lawsuit against CBC – (potentially unmeritious, frivolous, vexatious
claims) AND the non-disclosure to police of evidence given Gomeshi gave them might be a crime – must not act
criminally in pursuit of client interests) create a tension between the lawyers’ obligation to Gomeshi as their
client and the opposing duty to themselves, the profession, justice
 The Solution: Zealous Advocacy- as it upholds client dignity and access to justice.
o There are checks and balances in place in the judicial system already and the court recognized the
dilemma/tensions faces by lawyers (as demonstrated by courts unwillingness generally to impose costs
against lawyers who bring such claims)
 “The injury to the moral foundations of the lawyer-cleint relationship from the lawyer precluding the client’s
access to court is too great, and the judicial process has safeguards to ameliorate much (although by no
means all) of the harm that filing of such claims can do”
3. Court Approval of Withdrawal
 Courts might have to approve; the jurisprudence is not firmly decided, varying judgements
R v Cunningham (SCC)- where court has authority to decline application for withdrawal (...not for ethical)
 Legal aid EE applied for withdrawal in case of sex offence against child on the basis that he failed to update
financial info
 Court must grant withdrawal if ethical reasons cited
 If withdrawal is sought for financial reasons, court can exercise discretion
 Court must accept reasons given at face value
 In exercising discretion to decline, must consider list of non-exhaustive factors, high bar – use discretion
sparingly:
o Whether feasible for accused to represent herself
o Other means of obtaining representation
o Impact on accused from delay
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o Conduct of counsel (reasonable notice to allow accused to get other rep?)

o Impact on crown and any co-accused
o Impact on complainant, witnesses, jury
o Fairness to defence counsel
o History of the proceedings (accused changed lawyers repeatedly?)
4. Whistleblowing, Up the Ladder Reporting, Noisy Withdrawal
 As a result of Enron (lots of lawyers involved in that disaster), Canada followed the US’s lead and enacted an “up
the ladder reporting” system, legislated in MC 3.02(8):
o A lawyer who knows that the organization she works for is acting or intends to act dishonestly,
fraudulently, criminally, illegally, must:
 Advise their supervisor and the chief legal officer
 Advise progressively the next highest persons or groups
 If the organization continues despite the above, lawyer has to withdraw
 Commentary: withdrawing in some cases may include resigning
DUTY TO PRESERVE CLIENT CONFIDENCES

A. Distinctions, Definitions, Rationale
DISTINCTION and DEFINITION
Confidence is distinguished from Privilege in four ways
o 1. Confidentiality is an ethical duty, privilege is a legal duty

o 2. Confidentiality related to all of the client information acquired by the lawyer, privilege is limited to
private communications
o 3. Ethical obligations continue even if info comes to be known by others, whereas communication of
privileged info to 3Ps can and often does bring an end to privilege duty
o 4. Privilege is a legal duty primarily associated with the law of evidence
“Confidential Information” (Model Code)
Lawyers must keep client information strictly confident unless:

(a) expressly or impliedly authorized by the client;
(b) required by law or a court to do so;
(c) required to deliver the information to the Law Society; or
(d) otherwise permitted by this rule.
Model Code Commentary
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“The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for
the client”
RATIONALE
Proulx & Layton “ Ethics and Canadian Criminal Law”

 a client who is assured of complete secrecy is more likely to reveal to her counsel all information pertaining to
the case; the truth finding function of the adversarial system
 Benefit to individual client as well as broader society
EXCEPTIONS TO THE DUTY OF CONFIDENCE
1. The “Crime/Fraud Exception”
Descoteaux v Mierzwinski (SCC)- lawyers do not need to keep communications for a criminal purpose in
confidence
 Police lawfully seized legal aid document in part of investigation into fraudulently claiming lower income; not
subject to duty of confidence
2. The “Public Safety Exception”
Lawyers may disclose where the lawyer has reasonable grounds to believe that the disclosure is “necessary to prevent a
crime involving death or serious bodily harm to any person” (Model Code)
Smith v Jones (SCC) - duty of confidence over-ridden by public safety concerns in some circumstances
 Whether public safety outweighs, depends on three factors:
1. clarity of danger
2. Seriousness of harm
3. Imminence of harm
 Psychiatric report that indicated high likelihood and escalating re-offence of aggravated sexual assault tendered
for evidence and duty of confidence over-ridden b/c of public safety concern
3. The “Innocence at Stake Exception”
R v McClure (SCC)- fairness to accused may over-ride duty of confidence in some circumstances
 Whether fairness to accused over-rides will depend on two-part test:
1. accd must show evid. basis for belief that client-lawyer comm to raise reasonable doubt of guilt
2. If 1 satisfied, judge looks at it to determine if it should be tendered as evidence at trial
 Accd not successful in trying to over-ride duty of confidence of complaintant and lawyer to have production of
civil litigation file tendered as evidence of fabrication of complaint
4. Access to materials under Access Act &The Rule in Descoteaux – “Absolute Necessity”
Goodis v Ontario (Ministry of Correctional Services)- access must be absolutely necessary in order to achieve the
ends sought by the legislation.
 Journalist denied access to records regarding allegations of sex abuse of offenders by their probation officers
because they were not absolutely necessary – other means existed.
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5. Access to materials by Law Society under the Legal Professions Act
Law Society of Saskatchewan v Merchant - The legislative intent of the Legal Profession Act allows law society
access to confidential materials
 Law society granted access by court; from investigation arising from client’s former wife regarding a his
settlement; Merchant was supposed to pay court settlement amount to secure client’s child support obligations.
ETHICS IN ADVOCACY
A. Visions of the Advocate
The centrality of her interests varies depending on which version of the advocate one subscribed to
Code reflects the ZA model of lawyering:
 When “acting as an advocate”, lawyer must “represent the client resolutely and honourably within the limits of
the law, while treating the tribunal with candour, fairness, courtesy and respect” Model Code Rule 4.01(1)
 [and] “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that
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” (MC Commentary)
A advocate “is a minister of justice” who must balance and resolve competing interests. (Lord Denning)
B. Ethics in Pre-Trial Procedures
1. Pleadings
 Specific Pleading requirements: A lawyer shall not engage in an “abuse of process” by prosecuting proceedings
that are, although legal, “motivated by malice...and are brought solely for the purpose of injuring the other
party” (Rules of court)
 Generally: As an advocate, must discharge duty “fairly and honourably”, “without illegality”, and “should avoid
and discourage the client from resorting to frivolous or vexatious objections” and must not knowingly permit
or assist a client in doing anything dishonest or dishonourable (MC Commentary)
 Striking pleadings is a remedy to unethical behaviour (Colborne Capital Corp)
DCB v Zellers Inc (1996) – it is unethical to make unmeritous threats to sue

 In an agreed statement of facts, the parent of a child shop-lifter was reimbursed the “recovery fee” she paid
under Zeller’s threat of an unmeritous law suit (since parents are not liable for the torts of their children).
2. Discovery
 Discovery is subject to significant regulation. This part of the litigation process requires parties to open their
homes, offices, secrets, etc to the scrutiny of the other side.
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 Highly Vulnerable to unethical conduct (Grossman): b/c It occurs in the “hands of lawyers” entirely out of court
Grossman v Toronto General Hospital – parties have ethical obligation to make careful search of all relevant
documentation; counsel must make inquiries
 The refusal to disclose documentation unless P could prove its existence is unethical and unfair; discovery
process vulnerable to significant abuse and so counsel is ethically obligated to make careful search, inquries
 regarding a patient who went missing and was found dead 12 days later in a ventilation shaft
3. Negotiation (and ADR)
 Settlement discussions should pervade every lawsuit

 by the court’s reasoning in Grossman, since negotiations occur in the “hands of lawyers”, occurring entirely out
of court, strict ethical guidelines should apply
 in the specific context of settlement negotiations, “ a lawyer must advise and encourage a client to compromise
or settle a dispute whenever it is possible to do so” (MC s 2.02(4))
 Lawyer must consider use of Alternative Dispute Resolution when appropriate, and must inform client of ADR
option (MC Commentary)
 Most codes silent on conduct in negotiation, except Alberta’s code used to which specifically says that a
lawyer must not mislead another lawyer (Rule 6.02(2)) and the Commentary specifically includes “Negotiation”
in circumstances where lawyer’s may not lie
C. Ethics at Trial
1. Witness Preparation
 “ethically thorny” aspect of trial preparation

 There is an important difference between witness preparation versus witness coaching
o Coaching is both unethical and illegal
o a lawyer must not assist a witness in being dishonest or dishonourable, or permit a witness to be a
party to be false or misleading (Model Code Rules 4.01(2)(b), (k))
o lawyer must take care not to subvert or suppress any evidence (Model Code Rule 4.03)
Sanctions for misconduct in witness preparation
R v Sweezey - Potential avenues for sanctioning misconduct of an advocate

 Sweezey counselled client to be forgetful and evasive when testifying
 Negative reputation, costs against client, costs aginast lawyer, negative order under a civil procedure rule of
court, law society disciplinary order, criminal sanctions (R v Sweezey)
o “The Canadian justice system relies on the honesty and integrity of counsel who practise within in. To
that end, every lawyer is made an officer of the courts in which he will practice. Casews before such
courts are in pursuit of by willfully counselling evasive evidence not only commits an offence contrary
to ...the Criminal Code but also breaches his solemn duty as an officer of the court” (Sweezey)
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2. Cross-Examination
R v Lyttle (2004 SCC) – the scope of an advocate’s ethical conduct in the context of cross-examination of the
opposing witness: counsel granted a wide latitude wrt x-examination, so long as it is done in good faith; NO
baseless claims tho
 Vic identified accd as the only unmasked assailant – the Defence theory was that the vic was lying to protect the
real assailant. Was aggressively X-examined, and Q arose as the extent of restraint required in X-exam
 BUT: must not make absolutely baseless claims:
o “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 client’s case. But, as an officer of the
court concered 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 client’s wishes or
with what the client think are his personal interests. Counsel must not mislead the court, he must not
lead himself to casting aspersions on the other partyor witnesses for which there is not sufficient basis
in the information in his possession...” (citing Rondel v Worsely 1969 Eng HL)
R v R (AJ) (1994 ONCA) – the scope of the crown counsel’s ethics in the context of crow-examining the accused –
must not be improper, abusive, based on negative personal opinion
 Court allowed accds appeal in a sex abuse charge involving a child on the basis that the crown cross-examined
the accd in an abusive, improper fashion based on the crown prosecutor’s personal negative opinion, that likely
prejudiced the jury’s determination
3. Representation About the Law
 Lawyers have a ethical obligation to inform the court about governing authorities, both positive and negative
(Rondel v Worsley; per Lord Denning – as part as the advocate’s role as a “minister of justice”)
 lawyers shall not deliberately refrain from informing a tribunal of any binding authority (Model Code Rule
4.01(2)(i))
GM v Isaac Estate – silence wrt to a binding precedent is unethical

 Held for D, as P’s case was unmeritous and non-disclosure of precedent case (for which he was counsel adn so
absolutely was aware of ) is unethical
 Even if you think its distinguishable, you are still ethically obligated to bring that case to the court’s attention
4. Advocacy and Civility
Alice Woolley - “Does Civility Matter?”
 Civility in the legal context could mean 1)politeness towards others in the justice system or 2)more
substantively, to act honestly, fairly, and with integrity
 Problem with the more substantive meaning is that it obscures the real ethical principles at play
 Arguments For Civility:
o politeness, decency, kindness, seem like self-evidence basic moral obligations; the stuff you learn in
kindergarten.
 Arguments Against Civility:
o “ethical obligations of a lawyer are not the same as those of a kindergarten student”
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o Obscuring real problems: potential to undermine the ability of law societies to fulfill their obligations to
regulate lawyers’ ethics. By elevating civility, collegiality, and courtesy as dominant professional
considerations in law, creates the impression that truth seeking is a secondary function of a lawyer
o Perpetuates discrimination: “given that the historical collegiality with which civility is often associated is
also connected to discrimination and intolerance for diversity...what constitutes ‘polite’ behaviour may
require greater tolerance of forms of expression than are countenanced by the civility movement”
o Good for client interests: Rudeness and uncomfortable speech is undertaken in the pursuit of the clients
interest and therefore incivility is good, because acting in the clients interests is good.
Schreiber v Mulroney – lying to opposing counsel is unethical

 Court held that Counsel acted unethically by agreeing not to note the opposition in default and then reneging
Law Society BC v Laarakker (hearing panel)- unethical to make discourteous personal remarks re another lawyer
 Law Society Panel found lawyer to be in professional misconduct after Lawyer posted comments in internet blog
and sent fax letter to lawyer that said discourteous personal remarks
DUTY OF LOYALTY AND CONFLICTS OF INTEREST

A complex enterprise in the modern practice of law:
“No area of the law governing lawyers consumes more lawyer time, creates more confusion and frustration, or causes
lawyers more difficulty in their practices, than the rules governing conflicts of interests”(Alice Woolley)
A. Client-Client Conflicts
3.4-10: Unless the former client consents, a lawyer must not act against a former client in:
1. (a) the same matter,

2. (b) any related matter, or
3. (c) any other matter, if the lawyer has relevant confidential information arising from the
representation of the former client that may reasonably affect the former client.
Rule 3.4-10  3.4-11 extends the duty to the entire firm.
Commentary: allows lawyers to act against former client’s in a “fresh and independent matter wholly unrelated to any
work the lawyer has previously done for that person”
1. Duties to Former Clients
MacDonald Estate v Martin (SCC) – conflict is based on impartation confidential info TWO-PART TEST:
 Sopinka: SCC disqualified firm from case for conflict of interest (part 2 of test failed – no screening). Lawyer
representing P transferred to firm representing D and had intimate knowledge of Ps case but was not assigned
to Ds case when transferred.
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TWO-STEP TEST now in Model Code Appendix D and Rules 3.4-17 to 3.4-26:
1) Did the Lawyer receive confidential information attributable to a solicitor and client relationship relevant to the
matter at hand?
 once it is shown a relationship existed, strong, though rebuttable inference that confidential information was
imparted unless solicitor satisfies the court to the contrary (high burden)
 Can rebut this presumption; court must be satisfied that a reasonably informed member of the public would
believe that no information passed, and lawyer must do so without revealing privileged information
2) Is there a risk that it will be used to the prejudice of the client? (failed here b/c no screening measures taken)
 Assurances and undertakings (affidavits) are insufficient to show that information will not be used
 Must have verifiable steps taken (cones of silence, Chinese Walls) by firm to implement screening,(eg. no
contact with lawyers working on file) (notes that this might not even be suff)
Policy Rationale:
 Product of competing values:
 1) Litigant should be able to choose counsel
 2) Standards of the profession and justice system integrity
 3) mobility within profession
Dissent (Cory)
 Appearance of fairness must outweigh the idea that lawyers not likely to share
 The “mega-firm” structure should not be an excuse to undercut legal ethics
2. Duties to Current Clients
R v Neil (SCC)- articulation of duty of loyalty; conflict is based on loyalty. Bright line TEST
 Associated lawyer found to breach his duty of loyalty of loyalty in using position to sit in on depositions to gain
evidence to use against Neil and later heard of divorce where Neil was involved and falsified affidavits. New
layer used this info to attack Neil’s character in court (judge refuses to enter stay, remedy tbd by law society)
 Duty of Loyalty, closely tied to fiduciary duty and has 3 elements:
o 1) Duty to avoid conflicting interests
o 2) duty of commitment to client interests (ZA)
o 3) duty of candour
 Bright Line Test now Model Code Rule 3.4-1(6):
o Lawyer must not represent clients with immediate competing interests even if the two mandates are
unrelated, Unless:
 both clients consent after receiving full disclosure (duty of candour), & preferably independent
legal advice AND
 Lawyer reasonably believes that she is able to represent each client w/o adversely affecting the
other
 Exception to the bright line test: implied consent of prof litigants (including gov) where no danger of conf info
being misused.
 avoiding conflicts is not just about preventing conf info from being misused – about loyalty more broadly.
o THIS MATTERs because cones of silence and Chinese walls can’t address loyalty problems.
 In conflict analysis, primacy given to integrity of legal profession and administration of justice over client’s
choice of lawyer and lawyer mobility
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3. Former Client Conflicts
Strothers v Monarch (SCC)- putting personal business interests before client interests is breach of duty of
loyalty
 Held that senior partner Strother (at Davis) breached duty of loyalty to client Monarch by leaving Davis and
partnering with another Davis client in same business as Monarch and making massive profits, while Monarch
folded for lack of knowledge of the tax loophole that made Strother millions. Strother advised Monarch to fold.
 Breached duty of candour: by failure to revisit his advice that told them to fold after he learned of the tax loop,
and by failing to disclose that he has a financial interest in an opponent company
 Breached duty of ZA:by putting his personal financial interests ahead of his client Monarch
 Criticism of using conflict claims for tactical purposes
 Vulnerability of monarch: Strother’s specific expertise was not widely available,
 Problem was not the concurrency of clients (Monarch and Darc) but the substantial and direct financial interest
Wallace v CN(2011)– justification of the professional litigant exception on duty of loyalty in Neil, based on
sophistication, resources; TEST for when exception to Neil’s Bright Line applies
 Firm McKercher breached duty of loyalty by “dumping” long-time client CN (ZA breach ) and by failing to be
candid when it took on Wallace as client to sue in class action against CN. McK had 4 active files of CN when they
dumped them. CN had not told McK that it wanted exclusive representation. court does not disqualify
McKercher from representing Wallace (suggests other avenues – sue for dmgs, complain to Law Society).
 TEST for exception to Neil’s Bright Line:
o 1)Client is a large corporate client such as govt or bank
o 2)Matter are sufficiently unrelated
o 3)There is no danger of confidential information being abused
o 4)Wallace ADDED – whether in the circumstances, its application is consistent with the high
standard of the legal profession and the integrity of the justice system
 Implied consent with corporate clients to allow firm to represent clients with competing interests; after
the fact objections not determinative (otherwise the professional litigant exception would be meaningless)
 Justification of exception for corp litigant: based on sophistication and resources; also worry that large
corps could spread out their business to materially limit opposing party’s choice of counsel
B. Lawyer-Client Conflicts
Primary Tension: self-interests, client-interests (and the interests upholding the integrity of the legal system and
administration of justice)
Lawyers are placed in many situations where their own personal interests may come into conflict with client interests:
 lawyer takes possession of client assets: significant fiduciary duty. Abuses harshly punished by crts, LS.
 Lawyer not sensitive to reputation/circumstances of her client(Stewart)
 Lawyer develops personal relationship with client or client’s family (Chodos, Daboll)
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Stewart v CBC – breach of duty of loyalty (fiduciary duty) to exploit former client for self-promotion/financial
interest
 Held that lawyer breached his fiduciary duty of loyalty by producing, narrating show aired on CBC on a highly
sensationalized negligent murder case he was counsel for (and had represented him very well, securing light
sentence, and minimizing public damage through strategizing). $5k remuneration.
 Fiduciary duty of loyalty much broader than Duty of Confidentiality:
 Fiduciary Duty of Loyalty to former clients remains “alive though inoperative”; duty lives on past the end of
retainer: BREACH b/c D undid the benefits and protections he secured in his initial representation of P, he took
advantage of him and the information and issues by self-promotion and financial profit
 Duty of loyalty is a positive obligation.
Law Society of Upper Canada v Hunter (hearing panel) – sexual relationship with client has inherent danger
professional misconduct, potentially not reconcilable by consenting to conflict (MC 3.4 and commentary)
 Lawyer found in professional conduct for failing duty to not be in conflict with client interests by having several
year-long sexual relationship with client who he was representing in divorce proceedings, then upon break-up
tried to have her sign a consent to conflict contract. Eventually went to LS with his conflict, and conceded to
wrong-doing, and cooperated in proceedings.
 Sexual relationship with client is inherently dangerous, and especially so when client is vulnerable
 Rationale: Sexual relationships breach duty to not to be in conflict b/c (cited from Joseph):
o Sexual relationship threatens client entitlement to independence and objectivity
o Difficult for lawyer to remain dispassionate and potential for exploitation
o Consent may be contrived due to client’s vulnerable circumstances
COUNSELLING AND NEGOTIATION

A. Counselling
 One of the most important services lawyers offer is providing information; Lawyers as gatekeepers to legal
knowledge
 Tension: between duty to doing what is best for the client, but also respecting the autonomy of the client.
Sometimes the result is that lawyers may expressly or impliedly makes decisions re what’s best for the client
o Lawyers may not simply tell a client what they want to hear; lawyers are obliged to be honest and
candid
1. Counselling and Illegal Conduct
 lawyer must be honest and candid when advising client (MC 2.02(2))
 lawyer must never knowingly assist in or encourage dishonesty, fraud, crime or illegal conduct (MC 2.02(7)):
 A lawyer who is employed or retained by an organization that acts dishonestly, fraudulently, criminally,
illegally, the lawyer must advise their supervisor, and if necessary, the CEO, board of directors, etc and if the
conduct continues, must withdraw (MC 2.02(8))
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Law Society of Upper Canada v Sussman (discipline committee)- counselling client to breach court order is
misconduct
 Committee issues a 1 month suspension to Lawyer who counselled client to disobey an access order (wrt child
custody) even though there was no risk to kids, no immediate (or eventual application to vary the order
 “...There can be no behaviour more disruptive to our system of justice and more likely to bring its administration
into disrepute than a lawyer, while representing a party to a dispute, counselling his or her client to disobey the
clear, unequivocal terms of a Court Order. To do so is to undermine the courts effectiveness, contaminate the
esteem with which it is held in the eyes of the citizenry and foment the law of the jungle”
2. Other Issues:
a) Deceiving Clients
 commonly amount of work down, whether work is completed, lawyer’s availability to meet with client, lawyer’s
degree of experience/competence)
 Violates rules that extend from the Duty of Honesty and Candour (MC):
 Competent to provide advice
 Have sufficient knowledge of relevant facts
 Indicate when assumptions made
 Be wary of bold or over-confident assurances
b) Giving Non-Legal Advice:

 where lawyers asked to give business/financial/strategic advice.
 Lawyer must clearly delineate between legal advice and non-legal advice; if lawyer fails to do so, opens up
lawyer to being sued for negligence if their advice is incorrect
c) Error in counselling client that threatens client’s position

 Must promptly notify client and advise client that they have made error, and have candid conversation about
the possibility of a claim against the lawyer(MC 7.8)
 Must insist that they seek independent legal advice (from another lawyer) before making a decision(MC 7.8)
d) Encouraging Compromise
 Lawyer must advise and encourage client to compromise or settle dispute where possible (MC Rule 2.02(4))
 Lawyer should consider the use of ADR when appropriate (MC Commentary)
e) A cautionary tale of ZA in Counselling - David Luban. “Tales of Terror: Lessons for Lawyers from the “War on
Terrorism” – Role of the ZA unacceptable in counselling. LITMUS TEST ask yourself: would my opinion be the
same if client wanted opposite outcome
 Post 9/11, American gov’t asks counsel to define what they can get away with without breaking int’l torture
laws. The since discredited opinion said anything short of actions that cause organ failure. Did not indicate that
the opinion was outside of mainstream legal opinion.
 Enabled torture and “stretched and distorted the law to reach the outcome that the client wanted”
 Counsellor’s Rule of Thumb - LITMUS TEST should be to make your description of the law more or less the same
as it would be if your client wanted the opposite result.
 Litigating: What your client wants
 Counselling: what the law is
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B. Negotiation
 In negotiating disputes, people can act in their own best interests; are free to negotiate unethically if they chose,
as code is silent on conduct in negotiation (except Alberta’s code use to).
 Negotiating parties may withhold material facts from each other and to make untruthful statements.
o “the critical difference between those who are successful negotiators and those who are not lies in [the]
capacity both to mislead and not to be mislead” (James White cited in Woolley et al)
 The courts have accepted this position on negotiations:
o Westcom TV v CanWest:
 “”[p]arties involved in arm’s length negotiations commonly conceal their true intentions. It is
part of the negotiation process that positions are advanced and that do not represent what a
party truly expects or is prepared to agree to in the end”
1. Competence in Negotiation
MC 2.01(1)(c) - “competent lawyer” means a lawyer who has and applied relevant knowledge, skills and attributes in a
manner appropriate to each matter undertaken on behalf of a client and the nature and the terms of the lawyer’s
engagements, including:
(c) implementing as each matter requires, the chosen course of action through the application of appropriate
skills, including...
v) negotiation...
2. Regulation of Negotiation
Debate as to whether duty that lawyers must, in their dealings with other lawyers and self-rep clients act with integrity
and good faith, must not misrepresent or conceal information. The common viewpoint is that the acceptable and usual
degree of deception involved in negotiations is not altered by having lawyers involved.
Reasons Supporting a Less Aggressive Regulation of Lawyer Negotiation (Anti-Regulation):
 The need to respect lawyer’s obligations to promote the interests of her client
 If lawyers are more restricted in their tactics, clients will be tempted to not use a lawyer to circumvent the
regulations
 Concerns about misrepresentation and non-disclosure are already covered by other areas of law (torts of deceit
and misrepresentation, doctrine of mistake in contract)
 Even if these other reasons could be overcome, drafting a rule about what is and is not permissible in
negotiations would be difficult exercise
Opposing View (Pro-Regulation):
 Too simplistic to fall back on the lawyer’s fundamental duties

 There is no evidence that clients would choose to negotiate themselves or hire other professionals to avoid
restrictions placed on lawyers
 Other areas of law at best only cover some of the conduct in negotiations which is seen as problematic
 A workable rule could be drafted
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Law Society of Newfoundland and Labrador v Regular (2005) – professional misconduct to calculatedly mislead
and conceal material facts
 Law Society held that lying to client’s opposition to a directed question on the sale of a business to which client
was partial owner was unethical. Failed to act w integrity, in his responsibility as a lawyer, to avoid questionable
conduct
Old Provision of the Alberta Code prohibited lying in negotiation (REPEALED):
6.02(2): A lawyer must not lie or mislead another lawyer
Commentary: In no situation, including negotiation, is a lawyer entitled to deliberately mislead a colleague. The
lawyer has other alternatives, such as declining to answer
American Bar Ass’n Code prohibits lying in negotiation:
R 4.1: In representing a client, a lawyer shall not knowingly make a false statement of material fact or law to 3P.
3. Duty to Counsel Settlement
 Most provincial rules of professional conduct expressly require lawyer to try and settle:
 Model Code2.02(4): a lawyer must advise and encourage a client to compromise or settle a dispute
whenever it is possible to do so on a reasonable basis
4. Duty not to Threaten Criminal Proceedings
Lawyers are typically restricted in negotiations in the use they make of threats of starting or stopping criminal or quasi
criminal proceedings
ETHICS IN CRIMINAL LAW PRACTICE

A. Counsel’s Dual Role in the Adversary System
Crown must act as quasi-judicial minister of justice with less emphasis on adversarialism
 Boucher: Cr must not consider possibilities of winning or losing
 Cook: Not be assumed that Cr cannot put forward forceful advocate for conviction when pursuing legitimate
result on evidence
 Rose: Cr counsel are expected to be ethical AND adversarial
 Fair, objective and dispassionate but argue forcefully for the expected result
Defence is entitled to act entirely adversarially
 Stinchcombe; D has no oblig to assist the Cr, Must act responsibly
 Rondel v. Worsley: “overriding” duty to court, profession, public which may conflict with client interests and
wishes
 Vigorously represent interests of accused but remain independent of client and mindful of overriding duties
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B. Ethical Duties of Crown Counsel

Model Code :
 When acting as a prosecutor, must act for “public and the administration of justice” and act “resolutely and
honourably within the limits of the law...”
 See also MC 5.1-3 to 5.1- 8 and commentary
1. Duty to Seek Justice in the Public Interest

 Can seek conviction but must strive to ensure that D has a fair trial
 Goal is not to secure conviction but to assist court in truth-finding
 Discretion vested in crown should be exercised with objectivity, non-partisan way
2. Duty of Full Disclosure
R. v Stinchcombe (SCC) – general duty of crown disclosure, though not absolute – subject to crown discretion
 Court accepts one (of five) crown policy arguments, (namely that there is a danger that witnesses are killed
prior to trial if their evidence is disclosed) but finds that the accused right to the ability to make a full answer
and defence over-rides
 This duty of disclosure is not absolute – crown discretion extends to both the withholding of this information
(in the case of informer’s likely to be killed) and the timing of the disclosure.
Krieger v Law Society of Alberta – issues of crown discretion can be processed by law societies but not the courts
 Crown lies and says that favourable DNA results for person accd of murder won’t be ready for prelim, but they
were and didn’t disclose results implicated different person. Reprimanded by AG and removed from case; AG
and Krieger then tried to stop LS process on grounds Krieger exercising prosecutorial discretion in “delaying”
disclosure.
 Crown powers emanate from officer holder’s role as a legal advisor of the crown, but while immune from
courts, is not immune from processes of the Law Society
3. Duty to Call All Material Witnesses
R v Cook – crown does not have a duty to call material witnesses

 Crown does not call victim of machete attack, instead relies on witness – accd’s former gf and other evidence
 Requiring crown to call material witnesses usurps crown’s inherent discretionary power; contrary to
adversarial nature of the judicial system
 Once crown’s case is established, it is the D’s obligation to call witnesses to its benefit or face conviction
4. Overzealous Advocacy
R v Boucher(1954)- crown should act as investigators, ministers of justice, not as over-zealous advocates
 Crown made appeals to emotion and impressed upon the jury that the crown had thoroughly investigated the
accd and come to the conclusion of guilt beyond a reasonable doubt.
 Must not appeal to emotion, must not impress upon jury that the accd is, but your opinion, guilty beyond a
reasonable doubt
 Criminal prosecution is not a contest, it is a truth-finding mission
25
C. Ethical Duties of “Officers of the Court” (both crown and defence)

 Bothe crown and defence acting as officers of the court are constrained from engaging in certain forms of highly
adversarial behaviour by virtue of their status as officers of the court
 High standards of conduct revolve around broad concepts of seeking “justice and truth” (R v O’Connell)
 Modern conceptions of duties of officers of the court place premium on honesty and integrity
(RondelvWorsley)
 Duty to act with integrity and civility (R v Felderhof)
 Duty to act courteously and civilly (MC 5.5-5)
Rondel v Worsely – modern articulation of duties of officers of the court

 “The advocate has a duty to assist in ensuring that the administration of justice is not distorted or thrwarted
by dishonest or disreputable practices”
D. Ethical Duties of Defence Counsel

1. Duty to Client
 Lawyers duty to client that lawyer must represent the client resolutely and honourably within the limits of the
law (MC 5.1-1)
 Lawyer owes the client the duty to “fearlessly raise every issue, advance every argument, and ask every
question, however distasteful, which he thinks will help his client’s case” (Rondel v Worlsey) – this language is
also reflected in MC 5.1-1 Commentary
 Duty of confidentiality
 Consequence of not fulfilling duty: potential miscarriage of justice
2. Defending the Guilty Client and the fine line of not Misleading the Court
 Counsel has a duty to defend an accused client regardless of the lawyer’s opinions of guilt or innocence (MC
5.1-1 commentary)
 Counsel can continue to defend a client even though convinced of their guilt, but may only use certain means
of defence in such cases, namely those that do not involve knowingly misleading the court ( MC 5.1-1
Commentary) as in Tuckiar (below).
 Counsel should never express their personal opinions (as seen in Boucher, and discussed in the Marshall Inquiry
Report in which the defence allegedly believed their client was guilty)
R v Tuckiar (1934 Aus.) – unethical to state that you do not believe your client/breach confidence
 Aboriginal man acquitted of murder charge after counsel announced in court that he believed his client was
guilty and so had lied to him and could not represent him, and in doing so breached confidence by announcing
privileged communications between himself and his client.
3. Taking Custody and Control of Real Evidence

 If a client shows up to your office with a “smoking gun” or a “bloody shirt”...
 Model Code 5.1-2(e) prohibits lawyer from knowingly influencing the course of justice by suppressing what
otherwise ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct
 Model Code 5.1-2A and 5.1-2A[3]
 BUT Defence has no duty to disclose with the 3 exceptions in Stinchcombe:
26
o Must disclose abili in suff time to allow it to be properly investigated

o Expert opinion D relies on at trial within 30 days of trial
o A psychiatric defence should be disclosed with enough time for crown psychiatrist to examine accd
 It is illegal conduct to allow the client to use the lawyer’s confidence to deposit smoking guns and bloody shirts
into the lawyer’s office as a vehicle of disposing criminal evidence per the Criminal Code:
o CC S 139: offence to “obstruct, pervert or defeat the course of justice” – held to include hiding and
disposing of evidence
o CC S 23: defines an accessory after the fact as one who “receives, comforts or assists” s person who has
committed an offense and has been held to include hiding or disposing of evidence
 R v Murray (Bernardo Case) Rules / Loophole:
o Defence can take possession of evidence and conceal during pre-trial if believed it has exculpatory
value (but not for inculpatory).
o Loophole – defence of honest mistake
 Where a lawyer comes into possession of illegal, incrimination evidence, should consider three options 5.1-
2A[3]:
o Turn over to prosecution (in)directly
o Deposit w. TJ
o Deposit w. court to facilitate access for testing
o Disclose existence to Cr and prepare to argue issue of possession
4. Negotiating a Guilty Plea and Sentence

 Must learn the law and facts to effectively nego a sentence to be ethical
 Do not pressure client to plead guilty
 Do not encourage guilty plea for expediency when client claiming innocence
Four main rules arising from the Model Code:

1) counsel must not conclude plea and sentencing discussions without first completing a thorough analysis of
facts and law relevant to the case
2) the client is entitled to weigh the relative merits of trial versus guilty plea on the basis of competent advice
3)the decision as to what plea should be made must be made freely and voluntarily by the client
4)(”Plea of convenience”) plea must be made on the admission of the necessary facts and mental elements of
the offence charged and the public interest must not be sacrificed for expediency –most problematic and
disputed rule of the four
R v K(s) – an accds may not enter “plea of convenience” unless they are prepared to admit mental/factual
elements of the offence
 Court set aside guilty pleas where Accd, charged with 10 counts of sexual offences against young girls, plea
bargained to enter guilty on four lesser charges in exchange of remaining charges being dropped, hoping to
avoid custodial sentence. Continued protests of innocence throughout. Judge ruled that he was not eligible to
plead guilty because he denied the necessary elements of the offence
27
FUTURE OF THE LEGAL PROFESSION – FRED HEATON GUEST LECTURE

The role of the CBA
 The CBA is not a regulatory body; they assist the law profession with training, with creating various tools to seek
to help the legal profession
Evolving face of the Legal Profession
 Firms using increased technology for variety of areas of operating their firms, practicing law
o “We-vorce” (created by American Family lawyer)
 Plain language questionnaire; Computer algorithym to predict outcome
 Professional Cross-over forcing legal profession to evolve its practices
o Eg. Accountants advertising that they can assist the public with rights-based issues. Is this ok? Its ok if he has
lawyers.
 Process-mapping: breaks down everything we do based on cost.

o Common practice in business. Applied to law = not everything we do will continue to fall within the
scope of our duties based on this model
The CBA Legal Futures Initiative Report– what is it?
 22 recommendations based on this Client-based report

 What do client’s want?
o Innovation: Lawyers who use non- traditional sources/practices/sources
o Access: they want to pay less
o Predictability
o Process in delivery
o Transparency (inclusivity, involvement of clients in process, plain language)
 The SOLUTIONS will incorporate diversification of the profession, significant cross-over, leading to higher and
more efficient access for clients
28

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LAW 360 – ETHICS – PROF. PIRIE – SPRING 2015 – M.

1. Competence and Quality Generally.........................................................................................................................10

3. Former Client Conflicts............................................................................................................................................19

B. Ethical Duties of Crown Counsel..................................................................................................................................24

THEORIES, CONCEPTS, SOURCES OF LEGAL ETHICS

B. What Does it Mean to be an Ethical Lawyer?

1. Zealous Advocacy (Loyalty)

Alice Wooley – “In Defence of Zealous Advocacy”

R v Neil – the elements of the Duty of Loyalty

2. Moral Agent in Pursuit of Justice

R v Murray – fierce loyalty to a client may result in usurping justice

David Luban – “The Adversary Excuse”

Trevor Farrow – “Sustainable Professionalism”

1. Advertising, Fee Sharing and Solicitation

 “ ...a lawyer must make services available...” (Model Code)

Moral Non-Accountability versus “Taking it Personally”

Client Selection and Discrimination

3. Accessibility of Legal Services

4. Triggering the Lawyer-Client Relationship

B. Competence and Quality of Service

1. Competence and Quality Generally

recognizing limitations in one’s ability to handle a matter or some aspect of it

Nova Scotia Barristers v Richey – a “predictable” “pattern of poor judgement” = incompetence

Law Society of Alberta v Syed – another example

3. Continuing Legal Education

 Compulsory as of 2010 – “Continuing Professional Development”(CPD)

C. Termination of the Lawyer-Client Relationship

 Lawyer-client relationship is primarily contractual in nature

2. Withdrawal: Obligatory versus Optional

 If client persists on instructing lawyer contrary to ethics

3. Court Approval of Withdrawal

o Conduct of counsel (reasonable notice to allow accused to get other rep?)

4. Whistleblowing, Up the Ladder Reporting, Noisy Withdrawal

DUTY TO PRESERVE CLIENT CONFIDENCES

DISTINCTION and DEFINITION

Confidence is distinguished from Privilege in four ways

o 1. Confidentiality is an ethical duty, privilege is a legal duty

“Confidential Information” (Model Code)

Lawyers must keep client information strictly confident unless:

Model Code Commentary

Proulx & Layton “ Ethics and Canadian Criminal Law”

 Benefit to individual client as well as broader society

EXCEPTIONS TO THE DUTY OF CONFIDENCE

1. The “Crime/Fraud Exception”

2. The “Public Safety Exception”

3. The “Innocence at Stake Exception”

5. Access to materials by Law Society under the Legal Professions Act

Code reflects the ZA model of lawyering:

B. Ethics in Pre-Trial Procedures

DCB v Zellers Inc (1996) – it is unethical to make unmeritous threats to sue

3. Negotiation (and ADR)

 Settlement discussions should pervade every lawsuit

 “ethically thorny” aspect of trial preparation

Sanctions for misconduct in witness preparation

R v Sweezey - Potential avenues for sanctioning misconduct of an advocate

3. Representation About the Law

GM v Isaac Estate – silence wrt to a binding precedent is unethical

4. Advocacy and Civility

Alice Woolley - “Does Civility Matter?”

Schreiber v Mulroney – lying to opposing counsel is unethical

DUTY OF LOYALTY AND CONFLICTS OF INTEREST

1. (a) the same matter,

Rule 3.4-10  3.4-11 extends the duty to the entire firm.

1. Duties to Former Clients