S1.
PR - Morality and Loyalty
dependability and predictability of
adversary stem relies on amorality
of participating advocates
Lawyer’s job is to facilitate “the
clients exercise of moral autonomy
as authorized by law”
Requires lawyers to suppress own views
in favour of client to achieve CBA
provision: “lawyer must represent client
resolutely, honourably, and w/in the
limits of the law”
This model is Dominant in theory and
practice
Doesn’t necessarily mean
lawyer must put aside morality
though?
Luban hyper is req’d to
achieve goals of mere
Dare mere is all that is
required of a laywer
Pluralism mere zeal is all
req’s of lawyer to help clients
gain access to rights of social
legal institutions
[R v Neil] Farily hyoer-
zeal view of lawyer’s fiduciary
duty to client [pg. 11]
3 principles of FJ defined &
tested agains lawyer-client
relationship to determine this
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Lawyers should refrain from acting if
outcome of winning would be on the
Principle
balance a “bad thing” or “socially
Alternate Model - extra-legal
unfortunate”
norms currently sitting on top of
dominant model where CBA Preface: “primary concern is the
Principle Policy
appropriate protection fo the public interests”
In reality, personal morality affects
Practice
how one practices
Dominant Model - Client first;
Models of Professionalism
traditional and primary in practice 1. Clients Interests
Policy Failing to bridge professional
Req’ balancing competing, role w personal morality will
* Sustainable Professionalism - 2. Lawyers Interests
underlying interests b/c “impoverish both professional
takes seriously merits of alternate
exclusion fails to develop and personal pursuits”
model & responds to power of
professionalism that is
Practice dominant model 3. Ethical & Professional
sustainable
Interests of lawyer & profession
[Szarfer v Chodos] 4. Public Interests
Fiduciary relationship (equity) [Strother] Lawyer req’d to
means lawyer must put own act in best interests of client to
interests aside completely & the exclusion of others
breech of professional duty can
fall outside of contract law = 1. Lawyer req’ to be neutral
fiduciary duty [pg. 12] Loyal Advocacy - lawyer to toward client goals
Neutrality — see Reasonable place client’s interests above 2. Lawyer not morally
Pluralism their own so clients can access accountable for client’s goals
justice / lawyers are gateway to
Non-Accountability — Lawyers accessing justice Defining Features Bradley Wendel Lawyers
can’t be judged for client’s role is to do client’s bidding; to
desires 3. Lawyer is partisan to assist clients to pursue legal
accomplishing these goals goals while acting consistently
w the lawyers ethical and legal
obligations
Standard Conception &
Role of Law
Principles [pg 10]
Luban Rejects Standard
Partisanship - mere-zeal vs Moral agency balances loyalty &
Conception and says justice to give lawyer
hyper-zeal lawyers are morally
responsibility
Lawyer as Moral Agent in responsible. [pg. 13/14]
Pursuit of Justice - loyalty
[R v Murray] Murray had
alone can’t be norm of ethics;
no intent o obstruct justice by
justice also required and more
hiding damming tapes; simply
central; model code mentions
trying to uphold duty to client
justice 2x more than loyalty
[Canada (AG) v FLSC] via strategy [pg. 13/14]
Fudamental Justice states that [Spaulding v
the state cannot impose duties Zimmerman] [pg. 14]
on layers that undermine
commitment to clients [pg. 11]
S2. PR - Types of Misconduct

6 Stages defined by Jatrine Bentsi-Enchill [pg. 22]

[R v Fraser] Lawyer failed to advise client that he had
right to challenge jurors on ability to judge w/o bias due to
race factors of case resulted in incompetence and a
miscarriage of justice [pg. 13/14]
Cultural Competence [Central Trust Co. v. Rafuse]
Negligence = Damages Liable in contract means liable in tort;
# #
⚖ Rule 3.1-2 Mistakes must be ⚖ & Quality of Service
Competence ⚖ ⚖ ⚖
Two-Step Approach: 1) Incompetence = client picks which is most beneficial
pretty gross or patterned to warrant
appellant m demonstrate that Possible Discipline as in [pg. 20]
action [pg. 20]
conduct/omissions = [Law Society of [Nova Scotia Barristers’ Society v
incompetence & 2) that Alberta v Syed] Richey] incompetence is an instance only
incompetence = miscarriage judgement; not a permanent stain [pg. 20]
Cumulation of acts to prove
incompetence; not resting on
any single thing
Rule 3.2-2 when advising clients lawyer
Candour & Conflicting Duties
m/b honest an canid and m inform client of all
information known to lawyer that may affect
client interests in the matter [pg. 25]
1. Relating to client-lawyer
relationship
2. Pertaining directly to work
lawyer retained for
3. Relating to client’s interests
Three Categories of info subject
but not directly to the work [CNR Co. v McKercher LLP]
to Candour
retained for Even if Lawyer could act on behalf of
opposing client (sued CNR) despite
representing CNR (unrelated matters),
[Law Society of Alberta v Sychuk] they had breached duty of candour
Even behaviour outside the legal profession by not disclosing suit until sending
can result in misconduct if the public CN statement of claim.
perception of lawyers comes under question
e.g. “unbecoming conduct” [pg. 30]
[Adams v Law Society of Alberta] [LSUC v Nguyen]
Suctions should not be compared to penal Lawyers have duty to disclose
sentences. It is not a comparative scale of Misconduct - Public info to client even if they think [LSUC v Bolt] Even family law mediation
bad behaviour. Disbarment is appropriate perception is a big client already has it is practice if the parties rely on it like legal
once a threshold of behaviour/impact on consideration advice and acknowledge documents/process
public perception is reached. [pg. 31/2] to have legal effect [pg. 33/4]
[LSUC v Hunter] Sexual relationship [Lameman v Alberta] Barristers from UK
with client was a conflict of interests but not supporting case but crossing the line. Question
reprimandable given it was consensual and revolved around if there were complaints on
lawyer self-reported. No damage to public service would the law society normally handle;
Unauthorized Practice of Law -
perception nor did it affect the lawyer’s work yes, so they couldn’t practice in this way w/o
Provinces confirm monopolies on
[pg. 32/3] regulation from law society and appropriate
legal profession
registration. [pg. 35]
[Law Society of Alberta v Beaver]
Suspended lawyer acting as legal agent. Not
allowed as designation of barrister applies
even while suspended so cannot act as agent
b/c this is actually acting as a barrister — you
don’t abandon the right/title while temporarily
suspended. [pg. 35/6]

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 S3. PR - Ethics & Professional Regulation
Rule 7.5-1 Lawyers may
communicate to media / make
public appearances as long as
no infringement of obligations to
clients, profession, courts or
justice [pg. 41]
! ! ! !
[Stewart v CBC]
Rule 7.5-1 - Comment 3
Greenspan breached fiduciary
Public communications about
obligations to client by being
client’s affairs cannot be used
host of “The Scales of Justice”
as self-promotion; can be
and talking about his client’s
used to progress case / inform
case for the primary purpose
public [pg. 41]
of self-promotion [pg. 41]
Comment 1 inappropriate
to draw for captious or arbitrary
grounds
[Cunningham] Client failed to
update profile and lost legal aid
and lawyer wanted to w/draw from
criminal proceedings. Court
decided TJ could reject this
request but that this power should
be used sparingly [pg. 43]
Discharged by client
Client persist on instruction
lawyer to act contrary to
professional ethics
Lawyer is not competent to
continue to handle matter
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Advertising / Solicitation
Choice of Client
Rule 3.7-1 m NOT w/
draw from representation
expect for good cause and on
reasonable notice to client [pg.
42]
Rule 3.7-2 MAY w/draw
for non-payment of fees
Rule 3.7-2 MAY w/draw for
serious loss of confidence b/w
client/lawyer
Rule 3.7-2 MUST w/draw
Rule 4.2 & 4.3 no deceptive or misleading
Rule 4.2-1.2 no
advertising. Commentary talks about
aggressive marketing, marketing suggesting advertising second-opinion w
you are superior to there lawyers, and intention of bait/switch to get
!
advertising a speciality that ⚖
you are not certified !
retainer signed [pg. 40]
specialist in my law society [pg. 40]
[Law Society of Saskatchewan v
Merchant] Letter sent to students stating
they have “nothing to lose” but retainer
enclosed said otherwise [pg. 40/41]
Comment 4 lawyer has
Rule 4.1 lawyer m make
general right to decline
legal services available to public
representation (except when
efficiently & conveniently. May
assigned) but must act
offer legal service to a
prudently and cannot be for
prospective leant by any means
popularity reasons or
[pg. 41]
suspicions of guilt [pg. 41/2]
1. Lawyers are non-morally
accountable
Two Polar Views on 2. Lawyering involves “taking it
Accepting Clients personally”
Layton & Proulx take
middle ground b/w these two
Withdrawal of Service
S4. PR - Confidence & Privilege
Connects to Section 1 —
Loyalty & Ethics

Information that can come from

Privileged Communication generally
req’d by lawyer from client
Privilege - Legal Obligation
derived from CL part of FJ
anywhere — not just directly from client
— that relates to client / case
Confidence - Ethical obligation D. Layton duty is closely connected to
derived from Law Society codes
Loyalty b/c loyalty w/b undermined if lawyer
used confidential info to adversely affect client.
Even more important in criminal law b/c it lets
clients assert constitutional rights against state
! ⚖ ⚖⚖⚖

[Descoteaux v Mierzwinski]
communications which are
Criminal Fraud / criminal in themselves are are
Communication made w view to obtain legal
advice to facilitate crime are not
[Goodis v Ontario] Judge treated privileged. 4-Step rule for
motion for access as one by requester’s privilege [pg. 44/5]
council rather than by requester to argue
wether those records fall under Freedom of [Smith v Jones] when interest in
Info Act. But found that absent necessity in protection of the innocent accused
order to achieve end sought by legislation, and the safety fo members of the
they may not be used (client privilege was public is engaged, the privilege will
exception in legislation). Absolutely Public Safety have to be balanced against these
Necessary test in short: as restrictive as other compelling public needs. Only
Legislative Exceptions
possible w/o be an absolute block in compelling PI may override. 3
every case [pg. 47] considerations to determine
balance [pg. 45/6]
[Merchant] Does privilege extent to
include Law society? No but lawyers can’t [R v McClure] Privilege is
use client privilege to undermine LS role not an absolute and may yield
(regulation). Legislative privileges trump Exceptions / Exclusions Innocence at to allowed accused to make
relationship privileges; Law Society has job Stake full answer and defence.
to do by legislative power [pg. 47] Innocence at Stake Test (2
steps) [pg. 46]
[R v Fink] Offended the
Criminal Code s488.1 [R v Cunningham]
Charter and could not be saved
introduces procedures on how Disclosure of non-payment of
under S.1 b/c it did not
solicitor-client privilege would fees does not fall under special
minimally impart the right no
be assessed in searches circumstances b/c it does not
more than necessary to achieve Legislation on National
conducted at law offices attract privilege in the first place
the legislative objective Security / Law
[pg. 51/2]
[Canada (AG) v FLSC] Leglisation that required Enforcement
lawyers to collect, record, and retain information on Special [R v Murray] Evidence
those who paid them money to prevent money Circumstances interconnected w privilege
laundering. Held as affront to FJ and client privilege as (video tapes) Looks at
it put government in middle of relationship [pg. 50/51] tendency test.
Communication about
evidence privileged; physical
evidence itself is not. Yet, no
obligation to help police either.
[pg. 52/3]
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 S5. PR - Conflicts of Interests

Bright Line (2-part) general

rule that lawyer may not rep
on client who’s interests are
directly adverse to the
immediate interests of a [R v Neil, 2002] Firms, not
concurrent client — even if the just individual lawyers owe
two mandates are unrelated — duty to clients so bright line is
unless both clients consent req’d. [pg. 57-60]
AND the lawyer believed that
s/he is able to rep w/o
adversely affecting them [pg.
59]
Duty for loyalty can continue
[Strother, 2007] Retainer
beyond retainer if relationship
continues — breech of FD not expressly prohibited firm from
acting for clients in same tax- Test m/b such that the public
contract [pg. 62]
shelter scenes; retainer represents by the reasonably
Personal conflict of interests expired but firm continued [MacDonald Estates v informed person would be
— not created by new client doing other, non-related work Duties to concurrent Martin, 1990] Informed satisfied that no use of
but lawyer’s behaviour for Strother. A lawyer helped clients - one firm; two person test (2-steps) for confidential info would occur
(personal investment) [pg. 62] ex-Strother employee set-up clients; competing deciding whether a firm s/b 1) did the lawyer receive
new scheme, taking money for interests disqualified from continuing to confidential information?
Firm not at fault, it was
himself as a kick-back. litigate w conflict arrises [pg.
individual lawyer’s behaviour;
Applied Bright Line Test 55] 2) Is there a risk that it will be
thought they may be
from Neil [pg. 60-3] used to the prejudice of the
vicariously liable
Conflicts of Interest Duties to former clients client?
BL applies only where
immediate interests of clients Bright Line does not apply in [Ontario v Chartis
are directly adverse in matters circumstances where it is Insurance, 2017] Lawyer
on which lawyer is actin unreasonable for a client to moved to firm of past client’s
expect that its law firm w/n act [CN Railway Co v competition; walls ensure he
Only to legal (not commercial McKercher LLP, 2013] Firm didn’t deal w competition or
against it in unrelated
or strategic) interests representing CN on several work on files for them but
matters [pg. 65]
Cannot be raised tactically matters and w/o knowledge could he inadvertently
accepted retainer to launch disclose to other lawyers etc..
When outside BL then class-action against CN. [pg. Failed Informed Person Test
question is whether occurrent 63-9] [pg. 55]
rep creates substantial risk
that lawyer’s rep of Clint would
be materially or adversely
affected
[Stewart v CBC] Greenspan on TV Case.
[pg. 66 -8]
[LSUC v Hunter] Greenspan on TV Case.
[pg. 32
Other / basic loyalty
[LSS v Ballon] Lawyer selling building didn’t
disclosing what he thought were irrelevant risks
about the liquor licence before taking non-
refundable deposit. No fraud, dishonestly or lack
of integrity but was reprimanded. [pg. 68-9]

[R v Neil, 2002] Rise of

Adam Dodek outlines the shifting currents between
“minimalist” duty of lawyers and “maximalist” duty of lawyers
to clients. Goes through cases above and compares them
to the proper pragmatic approach [pg. 70 -2]
⚖ ⚖⚖
Maximalist - puts all the maximalist view
emphasis on maintaining the [Strother, 2007] majority
integrity of the justice system at
erred on this side but minority
the expense of the other 2
view that FD attached itself to
pragmatic values
what was in retainer was more
pragmatic.
Pragmatic - balances the three
[Martin v Gray,
competing values of 1) maintaining
Dangerfield] three different
integrity of justice system, 2) right to
versions of lawyer loyalty
litigants to have choice council, and
3) allowing reasonable mobility of
⚖ lawyers ⚖ ⚖
Minimalist - lawyers duty is not
to breach confidential and use
client’s info abasing client. Only
actual violations w be prohibited
but not appearance of

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S6. PR - Adversary / Criminal System
Lack of rigorous enforcement of the
rules of professional conduct s/not
be met w additional rules of civility
that will also not be enforced
[R v Sweezey] Coaching is
not allowed. Lawyer advised
client to be forgetful and
evasive and this was punished Witness preparation -
[pg. 74/5]
[R v Spence] eleven rules
of conducting witness
interviews [pg. 75]
[R v Lyttle] Crown didn’t call their
witness but defence wanted to cross-
examine. Was told evidence of their
working theory did not warrant this
access. Cross-examination is now
protected under ss.7 (d) Charter
[pg. 75/6]
[R v Shearing] Can’t put sexual
assault complainants on trail. [pg. 76]
[R v R] Cross-exam can’t exceed
probative value; or be abusive and
undermine justice. [pg. 76/7]
[R v Legebokoff] Lawyers
cannot knowing present false or
misleading evidence, but are entitled
to fairly and forcefully place client’s
case in best light. [pg. 89]
[R v Jenkins] Lawyers filed to
withdraw from case to avoid
misleading court. [pg. 89/90]
⚖
⚖ ⚖ # !
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Req’ should not weaken Woolley civility has two meanings:
ability to advocate for client 1) lawyers need to treat each other w
politeness, & 2) lawyers need to fulfill
duties et out in codes of conduct as
acting fairly, honestly, and w integrity
[pg. 78]
Cooper being civil does not
contradict the duties owed of a
criminal lawyer to their client; level of
civility related directly to level of
professionalism [pg. 101]
[Gloria v LSUC] Question on wether Law
Society could intervene on civility complaints in
courtroom or wether that was for the judge. Held
that LS certainly could intervene and that judge
had authority as well. [pg. 78/9]
[Schreiber v Mulroney] Sharp practice not
condoned and lack of frankness is not civil.
[pg. 80]
[LSBC v Laarakker] tests for various
problems (misconduct, unbecoming conduct,
incivility) [pg. 80/1]
Rule 5.1-2(b), (h), (j), (k), (m)
Ethics at Trial - Rule 5.1.1
Cross Comment 1, sets up competing
interests of client vs fairness/candour
Examination
and insurance that all parties receive
fair hearing
Misleading the
Court
Advocacy and Civility
Sexual Assault Cases
When you know your
client is guilty
Prosecutorial Discretion
Adversary / Criminal System
Rule 5.1.1, Comment 3
Lawyer has duty to client to raise
fearlessly ever issues, advance very
argument etc. however distasteful
Comment 5 lawyers
should refrain from expressing their
personal opinions [pg. 73]
[R v Mills] Evidence in
sexual assault cases can be
private but do not necessarily
attract more protection. From
the point of view of fairness in
the eyes of the community and
the complainant [pg. 90/1]
[R v Delisle] Lawyer can’t
judge own client before trial
begins. [pg. 91]
[R v Tuckiar] Lawyer openly
disclosing privileged
communication of client and
acknowledging correctness of
more serious testimony against
him was indefensible. [pg. 92]
[R v Li] Lawyer who’s client
has told him he’s guilty can call
witnesses to testify against
crown’s case or call into
question evidence, but cannot
claim innocences. [pg. 92/3]
[R v Anderson] Crown’s discretion
can’t be subject to second-guessing /
judicial oversight (SoP); only reviewable
for abuse of process [pg. 95/6]
[R v Nixon] Plea bargains are not
contractual agreements and are at the
crown’s discretion; as is revoking them
[pg. 96/7]
[R v Hillis] Crown is not entitled to
refrain from calling reliable evidence (in
this case witnesses) on the basis that it
could help the accused. [pg. 98]
[R v Levert] Aggressive crown cross
examination & test for crown impropriety:
improper cross-examination prejudices
accused in his defence or is so improper
as to bring the administration of justice
into disrepute the court will intervene. Not
the case here though. [pg. 99/100]
⚖⚖ ⚖
Pleadings - Rule 5.1.1,
Comment 8, 5.1-2(a), (b) all should
be consisted when drafting pleadings
Discovery - heavily regulated
area through rules of
procedure yet process takes
place behind closed doors
Litigation Privilege
Representations
about the Law -
Rule 5.1-2(i)
lawyers have ethical
obligation to inform a
tribunal of any
binding authority that
is on point or may
have been missed by
anther party [pg. 77]
Negotiation [pg. 85/6]
!
! !
[DCB v Zellers] Mother’s
kid shoplifted, they received
letter from lawyer w incorrect/
misleading info in it but plead
based on lawyer’s expertise;
she appealed fine [pg. 73]
[R v Hanemaayer] A valid
guilty plea must be made
voluntary and unequivocally;
Even if a plea is made this way,
the court can set it aside if new
evidence is found [pg. 87/8]
[R v Johnson] council
cannot support guilty plea if the
defendant doesn’t admit his
guilt [pg. 88/9]
[Grossman v Toronto]
Hospital discovery where lawyer
did half-assed job of providing
list of documents to opposing
side; they need a full list so they
know what to ask for; strategy
not to be tolerated [pg. 74]
[Bland v Canada] BCL litigation
privilege comes to and end, absent
closely related proceedings, upon
termination of litigation. Unlike
solicitor-client privilege, litigation
privilege is neither absolute in scope
nor permanent in duration. [pg. 82/3]
[GM Acceptance Corp. Of
Canada v Isaac Estate] B/c judges
are in the hands of council, council
must raise relevant caselaw
whenever it is relevant. Lawyer’s
duty to court but in some
circumstances this may be
overridden by duty to client. [pg.
77/8]
Rule 3.2-4 Lawyers advised to
encourage compromise or settlement
but is silent of professional obligations
on this matter
Rule 3.2-1 Commentary 5(k)
Rule 3.2- Commentary 3
Lawyers cannot provide assurances
that criminal or civil charges would be
w/drawn if a settlement is reached
[LSNL v Regular] Lawyer wrote
letter to another lawyer in negotiation w
deliberate intention to mislead when he
could have just said nothing about the
“rumour”. This equated to making it hard
for another lawyer to do his job [pg. 74]
S7. PR - Corporate Counsel
Paton Notes that ECJ ruled
that in-house in Europe lack
independence b/c they re
financially dependent on
employers and have “close ties”
w them. Means that NA corp
council should be careful when
speaking w Euro subs. [pg. 105]
[Pritchard v Ontario] given
Paton Mixed rolls like “Corp that in-house have both legal
and non-legal responsibilities,
Secretary” may not
each situation m/b assess
automatically mean everything
case-by-case. Whether or not
is privileged as roles are often
privilege attaches depends on
blurred its best to operate
nature of relationship, subject
under assumption not
matter of advice, and
privileged. [pg. 10]
circumstances in which it worth
and rendered. [pg. 105]
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Lawyers in Securities practices:
should practice “Noisy
Withdraw” and go up the ladder
Paton Ethical dilemma for in- reporting misconduct. If
house council saying “no” to Sr. company still fails to comply
Management as they may then then resignation and notification
have to resign. Response from of SEC and disaffirm any
Canadian lawyers on this misfilings w SEC [pg. 104]
shows no longer appropriate to
Leads to question on wether
rely on profession to regulate
Privilege for in house - in securities regulators s/ also be
!
conduct where greater public
Canada privilege attaches to interest is a stake. [pg. 102] regulating lawyers but Model
Corporate Counsel
in-house counsel legal advice. Code has adjusted to prevent
this for now see Rule 3.2-3,
In Europe this is not so.
8(a -c) and Rule 3.3-3
Regan Inside council lawyer-
client relationship is complex
because the client is both client
and boss. Lawyers are morally
responsible for consequences
of corporate objectives if they
play a role in selecting them
(and often do) [pg. 102]