Failure Memo

Professional Responsibility
Exam Exam Date: May 2017

Candidate 2017/

Grade: Fail (28/100)

Question 1 4/20

This question presented a fact pattern to the candidate and asked the candidate whether the
candidate could represent Susan in a claim against RCNB. The candidate was asked to discuss
and analyze the relevant considerations. This question required the candidate to correctly
identify the applicable rules for current client conflicts with reference to the Model Code and
relevant case law, especially the Supreme Court of Canada’s decisions in R. v. Neil and
McKercher/Wallace. The candidate was required to identify that a client is the client of the firm
not of a particular lawyer and discuss the nature of the duty of loyalty owed to each client. The
candidate was also required to analyze whether the professional litigant exception applied and if
there was a conflict, whether there were still circumstances where the lawyer could act (i.e.
informed consent from both parties).

The candidate correctly identified the problem of conflict of interest but did not begin to
sufficiently analyze the issue. The candidate did not analyze Neil, McKercher the professional
litigant exception or consent. Fees and disbursements are not relevant. The candidate needed to
do much more to obtain a passing grade on this answer.

Question 2 7/20

This question asked the candidate to discuss her/his ethical responsibilities as Defence Counsel
and how they differ from the ethical responsibilities of the Crown in the context of this case.
This question required the candidate to discuss the ethical responsibilities of Defence Counsel as
set out in Rules 5.1-1 et seq. of the Model Code and associated commentary as well as relevant
case law including R. v. Tuckiar and Rondell v. Worsley. The candidate should contrast this with
the ethical responsibilities of the Crown set out in Rule 5.1-3 and associated commentary and
caselaw such as R. v. Boucher. The candidate must ultimately explain what the lawyer in this
question can or must do.

The candidate mentioned general responsibilities of both defence counsel and Crown counsel.
The question required the candidate to analyze these “in the context of this case”. The candidate
did not sufficiently do this. The candidate needed to explain further what the lawyer in this
question can or must do. This is especially important respecting the admission by the client that
he stole an ipod instead of an ipad. The candidate needed to do much more to obtain a passing
grade on this answer.
Question 3 5/20

This question asked the candidate whether they have to disclose a potential witness to the Crown
and whether they could call David’s mother as a witness to testify that he was at home with her
when David told the candidate that this was not true. The question required the candidate to
discuss the disclosure obligations of the Crown and of the defence and the Defence Counsel’s
duty not to mislead the court and the potential of withdrawal.

The candidate did not correctly explain the Crown’s duty re disclosure and calling evidence as
per Stinchombe and R. v. Cook. The candidate did not address the issue of disclosure by defence
counsel and did not sufficiently address the calling of David’s mother as a witness by defence
counsel as the question asked. Partial marks were awarded for discussion of Rule 5.1-2A.

Question 4 12/20

This question asked whether the candidate could reveal the information that the client told the
candidate about being the real “Blackberry Bandit”. This question required the candidate to
discuss the ethical duty of confidentiality and solicitor-client privilege and analyze possible
exceptions, viz. the innocence at stake exception and the public safety exception.

The candidate did a good job discussing the ethical duty of confidentiality under Rule 3.3. The
candidate needed to discuss the public safety/future harm exception in Rule 3.3-3 in greater
detail. The candidate also needed to analyze the possibility of the application of the innocence at
stake exception.

Question 5 0/20

The question asked the candidate to discuss where and how access to justice issues arise in the
provisions of the Model Code of Conduct and if the candidate thought any changes should be
made to those rules to foster access to justice.

The candidate did not answer this question.

Total 28/100

June 17, 2017