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Index:
* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 1 of 5
* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 1 of 5
| THE CANADIAN BAR ASSOCIATION |  |
CODE OF PROFESSIONAL CONDUCT
Reference: The Canadian Bar Association
www.cba.ca
ABBREVIATIONS
Short-form reference to Codes of Conduct are as follows:
Alta of the Law Society of Alberta, November 2002. The Code is divided
into Statement of Principle (S.O.P.), Rules, and Commentary.
ABA-MC Model Code of Professional Responsibility of the American Bar Association (Chicago), adopted with effect from January 1, 1970, last amended in August 1980. The ABA-MC is divided into Canons, Ethical Considerations (ECs) and Disciplinary Rules (DRs).
ABA-MR Model Rules of Professional Conduct of the American Bar Association, adopted August 2, 1983, last amended in 2003.
B.C. Professional Conduct Handbook of the Law Society of British Columbia (Vancouver), last amended May 11, 2004.
N.B. of the Law Society of New Brunswick, adopted with effect from
January 1, 2004.
N.S. Legal Ethics and Professional Conduct Handbook of the Nova Scotia Barristers Society (Halifax), 1990.
Ont. Rules of Professional Conduct of the Law Society of Upper Canada (Toronto), adopted with effect from November 1, 2000, last amended June 28, 2002.
Que. Code of Ethics of Advocates, R.R.Q., 1981, c. B-1, r.1, under An Act Respecting the Barreau du Qubec. R.S.Q., c. B-1 and the Professional Code, R.S.Q., c. C-26.
CODE OF PROFESSIONAL CONDUCT
ADOPTED BY COUNCIL, AUGUST 2004 AND FEBRUARY 2006
INTERPRETATION
In this Code the field of professional conduct and ethics is divided into twenty-two chapters, each of which contains a short statement of a rule or principle followed by commentary and notes. Although this division gives rise to some overlapping of subjects, the principle of integrity enunciated in Chapter I underlies the entire Code, so that some of the rules in subsequent chapters represent particular applications of the basic rule set out in Chapter I. Again there are instances where substantially the same comment appears more than once. Such duplication is desirable to provide clarity and emphasis and to reduce cross-references.
The commentary and notes to each rule discuss the ethical considerations involved, explanations, examples, and other material designed to assist in the interpretation and understanding of the rule itself. Each rule should therefore be read with and interpreted in the light of the related commentary and notes.
Certain terms used in the Code require definition:
client means a person on whose behalf a lawyer renders or undertakes to render professional services;
court includes conventional law courts and generally all judicial and quasi-judicial tribunals;
Governing Body means the body charged under the laws of a particular jurisdiction with the duty of governing the legal profession (e.g., the Benchers, General Council, Convocation or Council);
lawyer means an individual who is duly authorized to practise law;
legal profession refers to lawyers collectively;
person includes a corporation or other legal entity, an association, partnership or other organization, the Crown in right of Canada or a province or territory and the government of a state or any political subdivision thereof.
The term lawyer as defined above extends not only to those engaged in private practice but also to those who are employed by governments, agencies, corporations and other organizations. An employer-employee relationship of this kind may give rise to special problems in the area of conflict of interest (See Chapter V.) but in all matters involving integrity (See Chapter I. The involvement of various lawyers in the Watergate affair most graphically illustrates some of the hazards.) and generally in all professional matters, if the requirements or demands of the employer conflict with the standards declared by the Code, the latter must govern.
CHAPTER I
INTEGRITY
RULE
The lawyer must discharge with integrity all duties owed to clients, the court or tribunal or other members of the profession and the public.*
/* ABA-MC Canon 1; B.C. 2; N.B. 1-R, 1-C.1; Ont. 6.01(1); N.S. 1-R; Que.
2.00.01, 3.02.01. Oxford English Dictionary (2d ed.) s.v. integrity: Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity. 2 Ont. 6.01(1) Commentary; N.S. 1.1. */
Commentary
Guiding Principles
1. Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession. If the client is in any doubt about the lawyers trustworthiness, the essential element in the lawyer-client relationship will be missing. If personal integrity is lacking the lawyers usefulness to the client and reputation within the profession will be destroyed regardless of how competent the lawyer may be. **
/** The principle of integrity is a key element of each rule of the Code.(N.B. 1-C.2.) **/
Disciplinary Action
3. Dishonourable or questionable conduct on the part of the lawyer in either private life or professional practice will reflect adversely upon the lawyer, the integrity of the legal profession and the administration of justice as a whole. If the conduct, whether within or outside the professional sphere, is such that knowledge of it would be likely to impair the clients trust in the lawyer as a professional consultant, a governing body may be justified in taking disciplinary action.
(ABA-MC DR 1-101; N.B. 1-C.3; N.S. 1.2.)
Non-Professional Activities
4. Generally speaking, however, a governing body will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the integrity of the legal profession or the lawyers professional integrity or competence.
5. Illustrations of conduct that may infringe the Rule (and often other provisions of this Code) include:
(a) committing any personally disgraceful or morally reprehensible offence that reflects upon the lawyers integrity (of which a conviction by a competent court would be prima facie evidence);
(b) committing, whether professionally or in the lawyers personal capacity, any act of fraud or dishonesty, e.g., by knowingly making a false tax return or alsifying a document, whether or not prosecuted for so doing;
(c) making an untrue representation or concealing a material fact from a client, with a dishonest or improper motive;
(d) taking advantage of the youth, inexperience, lack of education or sophistication, ill health, or unbusinesslike habits of a client;
(e) misappropriating or dealing dishonestly with a clients money or other property;
(f) receiving money or other property from or on behalf of a client for a specific purpose and failing, without the clients consent, to pay or apply it for that purpose;
(g) knowingly assisting, enabling or permitting any person to act fraudulently, dishonestly or illegally;
(h) failing to be absolutely frank and candid in all dealings with the Court or tribunal, fellow lawyers, and other parties to proceedings, subject always to not betraying the clients cause, abandoning the clients legal rights or disclosing the clients confidences; and
(i) failing to honour the lawyers word when pledged even though, under technical rules, the absence of writing might afford a legal defence.
CHAPTER II
COMPETENCE AND QUALITY OF SERVICE
RULE
1. The lawyer owes the client a duty to be competent to perform any legal services undertaken on the clients behalf.1
2. The lawyer should serve the client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation.2
Commentary
Knowledge and Skill
1. Competence in the context of the first branch of this Rule goes beyond formal qualification to practise law. It has to do with the sufficiency of the lawyers qualifications to deal with the matter in question. It includes knowledge, skill, and the ability to use them effectively in the interests of the client.3
2. As members of the legal profession, lawyers hold themselves out as being knowledgeable, skilled and capable in the practice of law. The client is entitled to assume that the lawyer has the ability and capacity to deal adequately with any legal matters undertaken on the clients behalf.4
3. The lawyer should not undertake a matter without honestly feeling either competent to handle it, or able to become competent without undue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client. This is an ethical consideration and is to be distinguished from the standard of care that a court would apply for purposes of determining negligence.5
4. Competence involves more than an understanding of legal principles; it involves an adequate knowledge of the practice and procedures by which those principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas in which the lawyer practises. The lawyer should also develop and maintain a facility with advances in technology in areas in which the lawyer practices to maintain a level of competence that meets the standard reasonably expected of lawyers in similar practice circumstances.6
5. In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a particular matter, relevant factors will include the complexity and specialized nature of the matter, the lawyers general experience, the lawyers training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is appropriate or feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In some circumstances expertise in a particular field of law may be required; often the necessary degree of proficiency will be that of the general practitioner.7
Seeking Assistance
6. The lawyer must be alert to recognize any lack of competence for a particular task and the disservice that would be done the client by undertaking that task. If consulted in such circumstances, the lawyer should either decline to act or obtain the clients instructions to retain, consult or collaborate with a lawyer who is competent in that field. The lawyer should also recognize that competence for a particular task may sometimes require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields. In such a situation the lawyer should not hesitate to seek the clients instructions to consult experts.8
Quality of Service
7. Numerous examples could be given of conduct that does not meet the quality of service required by the second branch of the Rule. The list that follows is illustrative, but not by any means exhaustive:
(a) failure to keep the client reasonably informed;
(b) failure to answer reasonable requests from the client for information;
(c) unexplained failure to respond to the clients telephone calls;
(d) failure to keep appointments with clients without explanation or apology;
(e) informing the client that something will happen or that some step will be taken by a certain date, then letting the date pass without follow-up information or explanation;
(f) failure to answer within a reasonable time a communication that requires a reply;
(g) doing the work in hand but doing it so belatedly that its value to the client is diminished or lost;
(h) slipshod work, such as mistakes or omissions in statements or documents prepared on behalf of the client;
(i) failure to maintain office staff and facilities adequate to the lawyers practice;
(j) failure to inform the client of proposals of settlement, or to explain them properly;
(k) withholding information from the client or misleading the client about the position of a matter in order to cover up the fact of neglect or mistakes;
(l) failure to make a prompt and complete report when the work is finished or, if a final report cannot be made, failure to make an interim report where one might reasonably be expected;
(m) self-induced disability, for example from the use of intoxicants or drugs, which interferes with or prejudices the lawyers services to the client. Promptness
8. The requirement of conscientious, diligent and efficient service means that the lawyer must make every effort to provide prompt service to the client. If the lawyer can reasonably foresee undue delay in providing advice or services, the client should be so informed.9
Consequences of Incompetence
9. It will be observed that the Rule does not prescribe a standard of perfection. A mistake, even though it might be actionable for damages in negligence, would not necessarily constitute a failure to maintain the standard set by the Rule, but evidence of gross neglect in a particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a failure regardless of tort liability. Where both negligence and incompetence are established, while damages may be awarded for the former, the latter can give rise to the additional sanction of disciplinary action.10
10. The lawyer who is incompetent does the client a disservice, brings discredit to the profession, and may bring the administration of justice into disrepute. As well as damaging the lawyers own reputation and practice, incompetence may also injure the lawyers associates or dependants.11
Subscripts
1 Alta. 2 S.O.P.; ABA-MC Canon 6; ABA-MR 1.1; B.C. 3(1); N.B. 2-R; Ont.
2.01(1), 2.01(2); N.S. 2-R.
2 B.C.3(3); N.B. 3-R, 3-C.1; N.S. 3-R.
3 N.S. 2.
4 N.B. 2-C.2; N.S. 2.1; Ont. 2.01(1) Commentary; Que. 3.01.01, 3.02.03.
5 Alta. 2-R.2; ABA-MC EC6-3, DR6-101A; N.B. 2-C.3; N.S. 2.3; Ont. 2.01(1)
Commentary.
6 ABA-MC EC 6-2; ABA-MR 1.1 [6]; N.B. 2-C.4; N.S. 2, 2.3.
7 N.S. 2.5, 2.6.
8 B.C. 3(4); N.B. 2-C.6, 2-C.7; N.S. 2.7, 2.8; Ont. 2.01(1) Commentary; Que.
3.01.01 and 3.01.02.
9 B.C. 3(3); N.B. 3-C.4; N.S. 3.1.
10 B.C. 3(5); N.B. 3-C.2.
11 N.B. 2-C.8; N.S. 2.9, 3.2, 3.3; Ont. 2.01(2) Commentary.
12 N.B. 2-C.9; N.S. 2.10; Ont. 2.01(1).
CHAPTER III
ADVISING CLIENTS
RULE
The lawyer must be both honest and candid when advising clients.1
Commentary
Scope of Advice
1. The lawyers duty to the client who seeks legal advice is to give the client a competent opinion based on sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyers own experience and expertise. The advice must be open and undisguised, clearly disclosing what the lawyer honestly thinks about the merits and probable results.2
2. Whenever it becomes apparent that the client has misunderstood or misconceived what is really involved, the lawyer should explain as well as advise, so that the client is informed of the true position and fairly advised about the real issues or questions involved.3
3. The lawyer should clearly indicate the facts, circumstances and assumptions upon which the lawyers opinion is based, particularly where the circumstances do not justify an exhaustive investigation with resultant expense to the client. However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than merely make comments with many qualifications.4
4. The lawyer should be wary of bold and confident assurances to the client, especially when the lawyers employment may depend upon advising in a particular way.5
Second Opinion
5. If the client so desires, the lawyer should assist in obtaining a second opinion.6
Compromise or Settlement
6. The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings.7
Dishonesty or Fraud by Client
7. When advising the client the lawyer must never knowingly assist in or encourage any dishonesty, fraud, crime or illegal conduct, or instruct the client on how to violate the law and avoid punishment. The lawyer should be on guard against becoming the tool or dupe of an unscrupulous client or of persons associated with such a client.8
Test Cases
8. A bona fide test case is not necessarily precluded by the preceding paragraph and, so long as no injury to the person or violence is involved, the lawyer may properly advise and represent a client who, in good faith and on reasonable grounds, desires to challenge or test a law, and this can most effectively be done by means of a technical breach giving rise to a test case. In all such situations the lawyer should ensure that the client appreciates the consequences of bringing a test case.9
Threatening Criminal or Disciplinary Proceedings
9. Apart from the substantive law on the subject, it is improper for the lawyer to advise, threaten or bring a criminal, quasi-criminal or disciplinary proceeding in order to secure some civil advantage for the client, or to advise, seek or procure the withdrawal of such a proceeding in consideration of the payment of money, or transfer of property, to or for the benefit of the client.10
Advice on Non-Legal Matters
10. In addition to opinions on legal questions, the lawyer may be asked for or expected to give advice on non-legal matters such as the business, policy or social implications involved in a question, or the course the client should choose. In many instances the lawyers experience will be such that the lawyers views on non-legal matters will be of real benefit to the client.
The lawyer who advises on such matters should, where and to the extent necessary, point out the lawyers lack of experience or other qualification in the particular field and should clearly distinguish legal advice from such other advice.11
Errors and Omissions
11. The duty to give honest and candid advice requires the lawyer to inform the client promptly of the facts, but without admitting liability, upon discovering that an error or omission has occurred in a matter for which the lawyer was engaged and that is or may be damaging to the client and cannot readily be rectified. When so informing the client the lawyer should be careful not to prejudice any rights of indemnity that either of them may have under any insurance, clients protection or indemnity plan, or otherwise.
At the same time the lawyer should recommend that the client obtain legal advice elsewhere about any rights the client may have arising from such error or omission and whether it is appropriate for the lawyer to continue to act in the matter. The lawyer should also give prompt notice of any potential claim to the lawyers insurer and any other indemnitor so that any protection from that source will not be prejudiced and, unless the client objects, should assist and cooperate with the insurer or other indemnitor to the extent necessary to enable any claim that is made to be dealt with promptly. If the lawyer is not so indemnified, or to the extent that the indemnity may not fully cover the claim, the lawyer should expeditiously deal with any claim that may be made and must not, under any circumstances, take unfair advantage that might defeat or impair the clients claim. In cases where liability is clear and the insurer or other indemnitor is prepared to pay its portion of the claim, the lawyer is under a duty to arrange for payment of the balance.12
Giving Independent Advice
12. Where the lawyer is asked to provide independent advice or independent representation to another lawyers client in a situation where a conflict exists, the provision of such advice or representation is an undertaking to be taken seriously and not lightly assumed or perfunctorily discharged. It involves a duty to the client for whom the independent advice or representation is provided that is the same as in any other lawyer and client relationship and ordinarily extends to the nature and result of the transaction.13
Subscripts
1 Alta 9-S.0.P; B.C. 1(3); N.B. 4-R; N.S. 4; Ont. 2.02(1); Que. 3.01.01; M.M.
Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Jane, 1957) at pp. 78-79.
2 N.B. 4-C.1; Ont. 2.02(1) Commentary; N.S. 4 Guiding Principle. The lawyer
should not remain silent when it is plain that the client is rushing into an unwise,
not to say disastrous adventure, per Lord Danckwerts in Neushal v. Mellish &
Harkavy (1967), 111 Sol. Jo. 399 (C.A.).
3 Alta. 9-R.12; N.B. 4-C.3; N.S. 4.1; Ont. 2.01(1) Commentary.
4 N.S. 4.2, 4.3; Ont. 2.01(1) Commentary.
5 N.B. 4-C.4; N.S. 4.4; Ont. 2.01(1) Commentary.
6 Alta. 9-R.17; N.B. 4-C.5; N.S. 4.5.
7 Alta. 9-R.16; N.B. 4-C.6; N.S. 4.6; Ont. 2.02(2); Que. 3.02.10.
8 Alta. 9-R.11; N.B. 4-C.7; N.S. 4.7, 4.8; Ont. 2.02(5). Cf. ABA ECs 7-3 and 7-5:
Where the bounds of law are uncertain...the two roles [of advocate and adviser] are essentially different. In asserting a position on behalf of his client, an advocate for the most part deals with past conduct and must take the facts as he finds them. By contrast, a lawyer serving as adviser primarily assists his client in determining the course of future conduct and relationships.... A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment... [emphasis added].
9 N.S. 4.9; Ont. 2.02(5) Commentary. For example, to challenge the jurisdiction for or the applicability of a shop-closing by-law or a licensing measure, or to determine the rights of a class or group having some common interest.
10 B.C. 4(2); N.B. 4-C.9; N.S. 4.10; Ont. 2.02(4). See Criminal Law May Not be
Used to Collect Civil Debts (1968) 2:4 L. Socy Gaz. 36.
11 N.B. 4-C.14; N.S. 4.11-4.13; Ont. 2.01(1) Commentary.
12 Alta. 9-R.18; B.C. 4(5), 4(5.1); N.B. 4-C.16; N.S. 4.14-4.17.
13 N.B. 4-C.13; N.S. 4.18, 4.19.
CHAPTER IV
CONFIDENTIAL INFORMATION
RULE
Maintaining Information in Confidence
1. The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and shall not divulge any such information except as expressly or impliedly authorized by the client, required by law or otherwise required by this Code.1
Public Safety Exception
2. Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that would substantially interfere with health or wellbeing, the lawyer shall disclose confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required.2
3. The lawyer who has reasonable grounds for believing that a dangerous situation is likely to develop at a court or tribunal facility shall inform the person having responsibility for security at the facility and give particulars, being careful not to disclose confidential information except as required by paragraph 2 of this Rule. Where possible the lawyer should suggest solutions to the anticipated problem such as:
(a) the need for further security;
(b) that judgment be reserved;
(c) such other measure as may seem advisable.3
Disclosure Where Lawyers Conduct in Issue
4. Disclosure may also be justified in order to establish or collect a fee, or to defend the lawyer or the lawyers associates or employees against any allegation of malpractice or misconduct, but only to the extent necessary for such purposes.4
Commentary
Guiding Principles
1. The lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time the client must feel completely secure and entitled to proceed on the basis that, without an express request or stipulation on the clients part, matters disclosed to or discussed with the lawyer will be held secret and confidential.5
2. This ethical rule must be distinguished from the evidentiary rule of solicitor-client privilege with respect to oral or written communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or to the fact that others may share the knowledge.6
3. The importance of the even broader ethical rule regarding confidential information is illustrated by the Supreme Court of Canadas approach to solicitor-client privilege. The Court has held that solicitor-client privilege must remain as close to absolute as possible if it is to retain its relevance. Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. The public has a compelling interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system.
4. As a general rule, the lawyer should not disclose having been consulted or retained by a person except to the extent that the nature of the matter requires such disclosure.7
5 The lawyer owes a duty of secrecy to every client without exception, regardless of whether it is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.8
6. The lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.9
7. The lawyer should avoid indiscreet conversations, even with the lawyers spouse or family, about a clients business or affairs and should shun gossip about such things even though the client is not named or otherwise identified. Likewise the lawyer should not repeat any gossip or information about the clients business or affairs that may be overheard by or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for the lawyers concerned and the legal profession generally will probably be lessened.10
8. Although the Rule may not apply to facts that are public knowledge, the lawyer should guard against participating in or commenting upon speculation concerning the clients affairs or business.11
Disclosure Authorized by Client
9. Confidential information may be divulged with the express authority of the client and, in some situations, that authority may be implied. For example, some disclosure may be necessary in a pleading or other document delivered in litigation being conducted for the client. Again, the lawyer may (unless the client directs otherwise) disclose the clients affairs to partners and associates in the firm and, to the extent necessary, to non-legal staff such as secretaries and filing clerks. This authority to disclose, whether express or implied, places on the lawyer a duty to impress upon partners, associates, students and employees the importance of nondisclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using information that the lawyer is bound to keep in confidence.12
Confidential Information Not to be Used
10. The fiduciary relationship between lawyer and client forbids the lawyer to use any confidential information covered by the ethical rule for the benefit of the lawyer or a third person, or to the disadvantage of the client. The lawyer who engages in literary work, such as an autobiography, should avoid disclosure of confidential information.13
Disclosure Required by Law
11. When disclosure is required by law or by order of a court of competent jurisdiction, the lawyer should be careful not to divulge more than is required.
Legislation in certain
jurisdictions imposes a duty on persons to report sexual or physical abuse in specified circumstances. Careful consideration of the wording of such legislation is necessary to determine whether, in such circumstances, communications that are subject to solicitor-client privilege must be disclosed.14
Whistleblowing
12. A lawyer employed or retained to act for an organization, including a corporation, confronts a difficult problem about confidentiality when the lawyer becomes aware that the organization may commit a dishonest, fraudulent, criminal, or illegal act. This problem is sometimes described as the problem of whether the lawyer should blow the whistle on the employer or client. Although this Code makes it clear that the lawyer shall not knowingly assist or encourage any dishonesty, fraud, crime, or illegal conduct (Chapter III, commentary 7), it does not follow that the lawyer should disclose to the appropriate authorities an employers or clients proposed misconduct. Rather, the general rule, as set out above, is that the lawyer shall hold the clients information in strict confidence, and this general rule is subject to only a few exceptions. If the exceptions do not apply there are, however, several steps that a lawyer should take when confronted with this problem of proposed misconduct by an organization. The lawyer should recognize that the lawyers duties are owed to the organization and not to its officers, employees, or agents.
The lawyer should therefore ask that the matter be reconsidered, and should, if necessary, bring the proposed misconduct to the attention of a higher (and ultimately the highest) authority in the organization despite any direction from anyone in the organization to the contrary. If these measures fail, then it may be appropriate for the lawyer to resign in accordance with the rules for withdrawal from representation (Chapter XII).15
Subscripts
1 Alta. 7-S.0.P, 7-R.1; ABA-MC Canon 4, DRs 4-101(A), (B), (C); ABA-MR 1.6(a);
B.C. 5(1); N.B. 5-R; N.S. 5; Ont. 2.03(1); Que. 3.06.01, 3.06.02.
2 Alta. 7-R.8(c); ABA-MC DR4-101(c)(3); ABA-MR 1.6(b); B.C. 5(12); N.B. 5-
C.8(b); N.S. 5.12; Ont. 2.03(3); Que. 3.06.01.
3 N.B. 5-C.11; Ont. 2.03(1) Commentary.
4 Alta. 7-R.8 (e.1); ABA-MC DR4-101(c)(4); N.S. 5.11; Ont. 2.03(5).
5 N.S. 5; Ont. 2.03(1) Commentary. [I]t is absolutely necessary that a man, in order to prosecute his rights or defend himself...should have recourse to lawyers and...equally necessary...that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege and not the privilege of the confidential agent)... per Jessell M.R. in Anderson v. Bank of British Columbia (1876), L.R. 2 Ch.D. 644 at 649 (C.A.). In Maranda v. Richer, [2003] 3 S.C.R. 193 the Supreme Court of Canada held that a lawyers account for fees and disbursements is protected by solicitor-client privilege.
6 N.B. 5-C.2; N.S. 5.1; Ont. 2.03(1) Commentary. The Supreme Court of Canada
has affirmed that solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance: Lavallee, Rackel & Heintz v. Attorney General o f Canada, [2002] 3 S.C.R. 209 at para. 36. In the same case (at para. 24) the Court observed that lawyers are the gatekeepers who protect the privileged information provided by their clients.
7 N.B. 5-C.3; N.S. 5.2; Ont. 2.03(1) Commentary.
8 N.S. 5.3; Ont. 2.03(1) Commentary. ...a fundamental rule, namely the duty of a solicitor to refrain from disclosing confidential information unless his client waives the privilege.... Because the solicitor owes to his former client a duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived, per Spence J. in Bell et al. v. Smith et al., [1968]
S.C.R. 644 at 671. To waive the privilege, the client must know of his rights and show a clear intention to forgo them: Kulchar v. March & Benkert (1950), 1 W.W.R. 272 (Sask. K.B.).
9 N.B. 5-C.5; N.S. 5.6; Ont. 2.03(1) Commentary.
10 N.B. 5-C.6; N.S. 5.7, 5.8; Ont. 2.03(1) Commentary.
11 N.S. 5.9; Ont. 2.03(1) Commentary.
12 Alta. 7-R.8(e); ABA-MC EC4-2, DR4-101(C)(1), (D); ABA-MR 1.6[5]; B.C.
5(11); N.B. 5-C.9(a); N.S. 5.10; Ont. 2.03(1) Commentary. When a solicitor files an affidavit on behalf of his client...it should be assumed, until the contrary is proved, or at least until the solicitors authority to do so is disputed by the client, that the solicitor has the authority to make the disclosure, per Lebel J. in Kennedy v. Diversified (1949), 1 D.L.R. 59 at 61 (Ont. H.C.).
13 Alta. 7-R.6(a); ABA-MC EC4-5; B.C. 5(5) to 5(8); N.S. 5.4, 5.5; Ont. 2.03(b) and Commentary. Misuse by a lawyer for his own benefit of his clients confidential information may render the lawyer liable to account: McMaster v. Byrne (1952), 3 D.L.R. 337 (P.C.); Bailey v. Ornheim (1962), 40 W.W.R. (N.S.) 129 (B.C.S.C.).
14 Alta. 7-R.8(b); ABA-MC DR4-101(C)(2); ABA-MR 1.6 [13], [14]; B.C. 5(13),
5(14); Ont. 2.03(2).
15 Ont. 2.03(3) Commentary.
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