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* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 3 of 5
* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 3 of 5
| THE CANADIAN BAR ASSOCIATION | |
OUTSIDE INTERESTS AND THE PRACTICE OF LAW
RULE
The lawyer who engages in another profession, business or occupation concurrently with the practice of law must not allow such outside interest to jeopardize the lawyers professional integrity, independence or competence.1
Commentary
Guiding Principles
1. The term outside interest covers the widest possible range and includes activities that may overlap or be connected with the practice of law, such as engaging in the mortgage business, acting as a director of a client corporation, or writing on legal subjects, as well as activities not so connected such as a career in business, politics, broadcasting or the performing arts. In each case the question of whether the lawyer may properly engage in the outside interest and to what extent will be subject to any applicable law or rule of the governing body.2
2. Whenever an overriding social, political, economic or other consideration arising from the outside interest might influence the lawyers judgment, the lawyer should be governed by the considerations declared in the Rule relating to conflict of interest between lawyer and client.3
3. Where the outside interest is in no way related to the legal services being performed for clients, ethical considerations will usually not arise unless the lawyers conduct brings either the lawyer or the profession into disrepute or impairs the lawyers competence as, for example, where the outside interest occupies so much time that clients suffer because of the lawyers lack of attention or preparation.4
4. The lawyer must not carry on, manage or be involved in any outside business, investment, property or occupation in such a way that makes it difficult to distinguish in which capacity the lawyer is acting in a particular transaction, or that would give rise to a conflict of interest or duty to a client. When acting or dealing in respect of a transaction involving an outside interest in a business, investment, property or occupation, the lawyer must disclose any personal interest, must declare to all parties in the transaction or to their solicitors whether the lawyer is acting on the lawyers own behalf or in a professional capacity or otherwise, and must adhere throughout the transaction to standards of conduct as high as those that this Code requires of a lawyer engaged in the practice of law.5
5. The lawyer who has an outside interest in a business, investment, property or occupation:
(a) must not be identified as a lawyer when carrying on, managing or being involved in such outside interest; and
(b) must ensure that monies received in respect of the day-to-day carrying on, operation and management of such outside interest are deposited in an account other than the lawyers trust account, unless such monies are received by the lawyer when acting in a professional capacity as a lawyer on behalf of the outside interest.
6. In order to be compatible with the practice of law the other profession, business or occupation:
(a) must be an honourable one that does not detract from the status of the lawyer or the legal profession generally; and
(b) must not be such as would likely result in a conflict of interest between the lawyer and a client.
Subscripts
1 Alta. 15-S.O.P.; N.B. 14-R(a); Ont. 6.04(1); N.S. R-8. This Rule is closely
connected with the Rule relating to conflict of interest between lawyer and client.
2 Ont. 6.04(2) Commentary; N.S. R-8. In Quebec, s. 122(1)(b) of An Act respecting the Barreau du Qubec provides that a person shall become disqualified from practicing as an advocate when he holds a position or an office incompatible with the practice or dignity of the profession of advocate. Que. 4.01.01(c) prohibits lawyers from having an interest in collection agencies.
3 N.S. C-8.2.
4 Ont. 6.04(2) Commentary; N.S. C-8.3.
5 Alta. 15-R.1, R.3; N.S. C-8.4 to C-8.6.
6 N.S. C-8.7.
CHAPTER VIII
PRESERVATION OF CLIENTS PROPERTY
RULE
The lawyer owes a duty to the client to observe all relevant laws and rules respecting the preservation and safekeeping of the clients property entrusted to the lawyer. Where there are no such laws or rules, or the lawyer is in any doubt, the lawyer should take the same care of such property as a careful and prudent owner would when dealing with property of like description.1
Commentary
Guiding Principles
1. The lawyers duties with respect to safekeeping, preserving and accounting for the clients monies and other property are generally the subject of special rules.2 In the absence of such rules the lawyer should adhere to the minimum standards set out in note 3.3 Property, apart from clients monies, includes securities such as mortgages, negotiable instruments, stocks, bonds, etc., original documents such as wills, title deeds, minute books, licences, certificates, etc., other papers such as clients correspondence files, reports, invoices, etc., as well as chattels such as jewellery, silver, etc.
2. The lawyer should promptly notify the client upon receiving any property of or relating to the client unless satisfied that the client knows that it has come into the
lawyers custody.4
3. The lawyer should clearly label and identify the clients property and place it in safekeeping separate and apart from the lawyers own property.5
4. The lawyer should maintain adequate records of clients property in the lawyers custody so that it may be promptly accounted for, or delivered to, or to the order of, the client upon request. The lawyer should ensure that such property is delivered to the right person and, in case of dispute as to the person entitled, may have recourse to the courts.6
5. The duties here expressed are closely related to those concerning confidential information.7 The lawyer should keep clients papers and other property out of sight as well as out of reach of those not entitled to see them and should, subject to any right of lien,8 return them promptly to the clients upon request or at the conclusion of the lawyers retainer.9
Privilege
6. The lawyer should be alert to claim on behalf of clients any lawful privilege respecting information about their affairs, including their files and property if seized or attempted to be seized by a third party. In this regard the lawyer should be familiar with the nature of clients privilege, and with relevant statutory provisions such as those in the Income Tax Act, the Criminal Code, the Canadian Charter of Rights and Freedoms and other statutes. 10
Subscripts
1 ABA-MC DR 9-102(B); ABA-MR 1.15; Alta. 7-R.3; B.C. 7.1; N.B. 7-R; N.S. R-
9; Ont. 2.07(1); Que. 3.02.06 to 3.02.08. Although the basic duty here declared may parallel the legal duty under the law of bailment, it is reiterated as being a matter of professional responsibility quite apart from the position in law.
2 ABA-MC EC 9-5, DR 9-102(A), (B); N.S. R-9 Guiding Principles.
3 The minimum standards are:
(a) paying into and keeping monies received or held by the lawyer for or on behalf of clients in a trust bank account or accounts separate from the bank account of the lawyer or the lawyers firm;
(b) keeping properly written books and accounts of all monies received, held or paid by the lawyer for or on behalf of each of the lawyers clients which clearly distinguish such monies from the monies of every other client and from the monies of the lawyer and the lawyers firm;
(c) not retaining for an unnecessarily long period, without the express authority of the client, monies received for or on behalf of such client;
(d) subject to rules prescribed by the governing body of the province, no lawyer shall take fees, as opposed to disbursements, from funds held in trust for a client without the clients express authority unless the work being done by the lawyer for the client has been performed and a proper account in respect thereof has been rendered to the client. Where a client authorizes the payment of fees from trust funds before an account has been rendered, this arrangement should be recorded in writing and an interim account sent to the client forthwith;
(e) the lawyer should not estimate a lump sum that may in the aggregate be owed by a number of clients and then transfer that sum in bulk from a trust account to the lawyers general account without allocating specific amounts to each client and rendering an account to each client.
4 ABA DR 9-102 (B)(1); N.B. 7-C.1(a); N.S. C.9.1; Ont. 2.07(2).
5 N.B. 7-C.1(b); N.S. C-9.2; Ont. 2.07(3).
6 N.B. 7-C.2; N.S. C-9.3, C-9.4; Ont. 2.07(4). For example, by seeking leave to
interplead.
7 Cf. the Rule relating to confidential information (Chapter IV).
8 Cf. para. 11 of the Rule relating to withdrawal (Chapter XII). The lawyers arrangements and procedures for the storage and eventual destruction of completed files should reflect the foregoing considerations and particularly the continuing obligation as to confidentiality. Further, statutes such as the Income Tax Act and the operation of limitations statutes pertinent to the clients position may preclude the destruction of files or particular papers. In several provinces statutes provide for the appointment of a custodian or trustee or the intervention of the syndic to conserve clients property where a lawyer has died, absconded or become incapable. See, e.g., Legal Profession Act, R.S.B.C. 1998, c.9, s.50; An act respecting the Barreau du Qubec, R.S.Q., c.B-1, s. 76(2); Law Society Act, R.S.O. 1990, c. L8, s. 49.45.
9 N.B. 7-C.3; N.S. C-9.5, 9.6; Ont. 2.07(1) Commentary.
10 N.B. 7-C.4; Ont. 2.07(6) Commentary.
CHAPTER IX
THE LAWYER AS ADVOCATE
RULE
When acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law.1
Commentary
Guiding Principles
1. The advocates duty to the client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his clients case and to endeavour to obtain for his client the benefit of any and every remedy and defence which is authorized by law2 must always be discharged by fair and honourable means, without illegality and in a manner consistent with the lawyers duty to treat the court with candour, fairness, courtesy and respect.3
Prohibited Conduct
2. The lawyer must not, for example:
(a) abuse the process of the tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the
part of the client and are brought solely for the purpose of injuring another party;4
(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable;5
(c) appear before a judicial officer when the lawyer, the lawyers associates or the client have business or personal relationships with such officer that give rise to real or apparent pressure, influence or inducement affecting the impartiality of such officer;6
(d) attempt or allow anyone else to attempt, directly or indirectly, to influence the decision or actions of a tribunal or any of its officials by any means except open persuasion as an advocate;7
(e) knowingly attempt to deceive or participate in the deception of a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;8
(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument or the provisions of a statute or like authority;9
(g) make suggestions to a witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition;10
(h) deliberately refrain from informing the tribunal of any pertinent adverse authority that the lawyer considers to be directly in point and that has not been mentioned by an opponent;11
(i) dissuade a material witness from giving evidence, or advise such a witness to be absent;12
(j) knowingly permit a witness to be presented in a false or misleading way or to impersonate another;13
(k) needlessly abuse, hector or harass a witness;14
(l) needlessly inconvenience a witness.15
Errors and Omissions
3. The lawyer who has unknowingly done or failed to do something that, if done or omitted knowingly, would have been in breach of this Rule and discovers it, has a duty to the court, subject to the Rule relating to confidential information, to disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.16
Duty to Withdraw
4. If the client wishes to adopt a course that would involve a breach of this Rule, the lawyer must refuse and do everything reasonably possible to prevent it. If the client persists in such a course the lawyer should, subject to the Rule relating to withdrawal, withdraw or seek leave of the court to do so.17
The Lawyer as Witness
5. The lawyer who appears as an advocate should not submit the lawyers own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyers partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge.
The lawyer must not in effect
become an unsworn witness or put the lawyers own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as advocate in any appeal from the decision in those proceedings.18 There are no restrictions upon the advocates right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.
Interviewing Witnesses
6. The lawyer may properly seek information from any potential witness (whether under subpoena or not) but should disclose the lawyers interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.19 The lawyer shall not approach or deal with an opposite party who is professionally represented save through or with the consent of that partys lawyer.20
A lawyer retained to act on a matter involving a corporation or organization that is represented by another lawyer should not approach
(a) a director, officer, or person likely involved in the decision-making process for the corporation or organization, or
(b) an employee or agent of the corporation or organization whose acts or omissions in connection with the matter may have exposed it to civil or criminal liability, concerning that matter, except to the extent that the lawyer representing the corporation or organization consents or as otherwise authorized or required by law. 21
Unmeritorious Proceedings
7. The lawyer should never waive or abandon the clients legal rights (for example, an available defence under a statute of limitations) without the clients informed consent. In civil matters it is desirable that the lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute.22
Encouraging Settlements and Alternative Dispute Resolution
8. Whenever the case can be settled reasonably, the lawyer should advise and encourage the client to do so rather than commence or continue legal proceedings. The lawyer should consider the use of alternative dispute resolution (ADR) for every dispute and, if appropriate, the lawyer should inform the client of the ADR options and, if so instructed, take steps to pursue those options.23
Duties of Prosecutor
9. When engaged as a prosecutor, the lawyers prime duty is not to seek a conviction, but to present before the trial court all available credible evidence relevant to the alleged crime in order that justice may be done through a fair trial upon the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to the accused or defence counsel (or to the court if the accused is not represented) of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would affect the punishment of the accused.24 There is a clear distinction between prosecutorial discretion and professional conduct. Only the latter can be regulated by a law society.
A law society has jurisdiction to investigate any alleged breach of its ethical standards, even those committed by Crown prosecutors in connection with their prosecutorial discretion.
Duties of Defence Counsel
10. When defending an accused person, the lawyers duty is to protect the client as far as possible from being convicted except by a court of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence charged. Accordingly, and notwithstanding the lawyers private opinion as to credibility or merits, the lawyer may properly rely upon all available evidence or defences including so-called technicalities not known to be false or fraudulent.25
11. Admissions made by the accused to the lawyer may impose strict limitations on the conduct of the defence and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, or to the form of the indictment, or to the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence, or call any evidence that, by reason of the admissions, the lawyer believes to be false.
Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done, or in fact had not done, the act. Such admissions will also impose a limit upon the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.26
12. A lawyer representing an accused or potential accused must not take unfair or improper advantage of an unrepresented complainant by attempting to influence the complainant or potential complainant with respect to the laying, prosecution or withdrawal of a criminal charge.
Agreement on Guilty Plea
13. Where, following investigation,
(a) the defence lawyer bona fide concludes and advises the accused client that an acquittal of the offence charged is uncertain or unlikely,
(b) the client is prepared to admit the necessary factual and mental elements,27
(c) the lawyer fully advises the client of the implications and possible consequences of a guilty plea and that the matter of sentence is solely in the discretion of the trial judge, and
(d) the client so instructs the lawyer, preferably in writing,28 it is proper for the lawyer to discuss and agree tentatively with the prosecutor to enter a plea of guilty on behalf of the client to the offence charged or to a lesser or included offence or to another offence appropriate to the admissions, and also on a disposition or sentence to be proposed to the court. The public interest and the clients interests must not, however, be compromised by agreeing to a guilty plea.29
Undertakings
14. An undertaking given by the lawyer to the court or to another lawyer in the course of litigation or other adversary proceedings must be strictly and scrupulously carried out. Unless clearly qualified in writing, the lawyers undertaking is a personal promise and responsibility.30
Discovery Obligations
15. Where the rules of a court or tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate, shall explain to the client the necessity of making full disclosure of all documents relating to any matter in issue, and the duty to answer to the best of the clients knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal; shall assist the client in fulfilling the obligation to make full disclosure, and shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.
Courtesy
16. The lawyer should at all times be courteous, civil, and act in good faith to the court or tribunal and to all persons with whom the lawyer has dealings in the course of an action or proceeding. Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though not punished as contempt, might well merit disciplinary action.31
Role in Adversary Proceedings
17. In adversary proceedings, the lawyers function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (save as required by law or under paragraphs 2(h) or 7 above) to assist an adversary or advance matters derogatory to the clients case. When opposing interests are not represented, for example, in ex parte or uncontested matters, or in other situations where the full proof and argument inherent in the adversary system cannot be obtained, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the clients case so as to ensure that the court is not misled.32
Communicating with Witnesses
18. When in court the lawyer should observe local rules and practices concerning communication with a witness about the witnesss evidence or any issue in the proceeding. Generally, it is considered improper for counsel who called a witness to communicate with that witness without leave of the court while such witness is under cross-examination.33
Agreements Guaranteeing Recovery
19. In civil proceedings the lawyer has a duty not to mislead the court about the position of the client in the adversary process. Thus, where a lawyer representing a client in litigation has made or is party to an agreement made before or during the trial whereby a plaintiff is guaranteed recovery by one or more parties notwithstanding the judgment of the court, the lawyer shall disclose full particulars of the agreement to the court and all other parties.
Scope of the Rule
20. The principles of this Rule apply generally to the lawyer as advocate and therefore extend not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals and other bodies, regardless of their function or the informality of their procedures.34
Relations with Jurors
21. When acting as an advocate, before the trial of a case, a lawyer should not communicate with or cause another to communicate with anyone that the lawyer knows to be a member of the jury panel. A lawyer may investigate a person who is a prospective juror to ascertain any basis for challenge, but in doing so must not directly or indirectly communicate with that person or with any member of that persons family. When acting as an advocate, a lawyer should disclose to the judge and opposing counsel any information of which the lawyer is aware that a juror or perspective juror (a) has or may have an interest, direct or indirect, in the outcome of the case, (b) is acquainted with or connected in any manner with the presiding judge, any counsel or any party, or (c) is acquainted with or connected in any manner with any person who has appeared or who is expected to appear as a witness, unless the judge and opposing counsel are already aware of the information.
A lawyer should promptly disclose to the court any information of which the lawyer is aware concerning improper conduct by a member of a jury panel or by a juror toward another member of the panel, another juror, or a member of a jurors family. Except as permitted by law, when acting as an advocate, a lawyer should not during a jury trial communicate with or cause another to communicate with any member of the jury. A lawyer who is not connected with the case before a jury should not communicate with or cause another to communicate with any member of the jury about the case. A lawyer must have no discussion with a member of the jury about its deliberations after trial.35
Subscripts
1 Alta. 10-S.O.P.; ABA-MC Canon 7; ABA-MR 3; N.B. 8-R; N.S. R-10; Ont.
4.01(1). The concept that counsel is the mouth-piece of his client and that his speech is the speech of the client is as unfortunate as it is inaccurate. He is not the agent or delegate of his client. Within proper bounds, however, counsel must be fearless and independent in the defence of his clients rights.... He must be completely selfless in standing up courageously for his clients rights, and he should never expose himself to the reproach that he has sacrificed his clients interests on the altar of expediency... per Schroeder J. A., Some Ethical Problems in Criminal Law in Law Soc. U.C. Special Lectures (1963) 87 at 102. An additional reference is The Advocates Society, Principles of Civility for Advocates (Ontario), see Appendix.
2 The sources of the quotations are (a) per Lord Reid in Rondel v. Worsley (1969) 1 A.C. 191 at 227 and (b) Canon 3(5) of the Canons of Legal Ethics of the Canadian Bar Association, adopted in 1920.
3 ABA-MC EC 7-1, 7-19; N.B. 8-R(b); N.S. R-9 Guiding Principle; Ont. 4.01(1)
Commentary.
4 ABA-MC DR 7-102(A)(1); B.C. 8(1)(a).
5 B.C. 8(1)(b).
6 ABA-MC Canon 9, DR 9-101; B.C. 8(1)(c).
7 ABA-MC EC 7-34; B.C. 8(1)(d).
8 Alta. 10-R.14, R. 20(b); ABA-MC EC 7-25 to 7-27, DR 7-102(A)(3); ABA-MR
3.3(a)(1)(3). The swearing of an untrue affidavit...is perhaps the most obvious example of conduct which a solicitor cannot knowingly permit.... He cannot properly, still less can he consistently with his duty to the Court, prepare and place a perjured affidavit upon file.... A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act... per Viscount Maugham in Myers v. Elman (1940), A.C. 282 at 293-94 (H.L.). [Counsel] had full knowledge of the impropriety of the paragraphs in the affidavit...[and] is bound to accept responsibility for [them].... If he knows that his client is making false statements under oath and does nothing to correct it, his silence indicates, at the very least, a gross neglect of duty, per McLennan J.A. in Re Ontario Crime Commission (1962), 37 D.L.R. (2d) 382 at 391 (Ont. C.A.).
9 ABA-MC DR 7-102(A)(5).
10 Alta. 10-R.19; ABA-MC EC 7-25, DR 7-106(C)(I); B.C. 8(1)(e); R. v. Lyttle,
[2004] 1 S.C.R. 193.
11 ABA-MC EC 7-23, DR 7-106(B)(1); ABA MR 3.3(a)(2); B.C. 8(1)(f). See Glebe Sugar v. Greenock Trustees (1921), W.N. 85 (H.L.) for a strong statement by Lord Birkenhead on the duty of counsel to disclose to the court authorities bearing one way or the other: The extreme impropriety of such a course [withholding a known pertinent authority] could not be made too plain.
12 ABA-MC DR 7-109(B); B.C. 8(1)(g).
13 Alta. 10-R.24; B.C. 8(1)(h); N.B. 8-C.10.
14 Alta. 10-R.21.
15 Ont. 4.01(2).
16 ABA-MC DR 7-102(B), DR 4-101 (C)(2); N.B. 8-C.11; Ont. 4.01(5).
17 ABA-MC DR 2-110 (B)(2); ABA-MR 3.3[15]; B.C. 8(7), 8(8).
18 ABA-MC EC 7-24, DR 7-106 (C)(3), (4); ABA-MR 3.7; B.C. 8(9), (10); N.B. 8- C.6; N.S. C-10.11; Ont. 4.02. It is improper, in my opinion, for Counsel for the Crown to express his opinion as to the guilt or innocence of the accused. In the article to which I have referred it is said that it is because the character or eminence of a counsel is to be wholly disregarded in determining the justice or otherwise of his clients cause that it is an inflexible rule of forensic pleading that an advocate shall not, as such, express his personal opinion of or his belief in his clients cause, per Locke J. in Boucher v. The Queen, [1955] S.C.R. 16 at 26.
19 ABA-MC DR 7-109; B.C. 8(12), (12.2), (12.3); N.B. 8-C.4 (a), (b); Ont. 4.03(1).
20 ABA-MC DR 7-104(A)(1); B.C. 8(12.1); N.B. 8-C.4(c); Ont. 4.03(2).
21 Ont. 4.03(3).
22 ABA-MC EC 7-38, 7-39, DR 7-106(C)(5); N.B. 8-C.7, C.8; N.S. C-10.1.
23 N.B. 8-C.1, C.2(a), (b); N.S. C-10.2, 10.2A.
24 Alta. 10-R.28; ABA-MC EC 7-13, 7-14, DR 7-103; ABA-MR 3.8; B.C. 8(18);
N.B. 8-C.13; Ont. 4.01(3). It cannot be overemphasized that the purpose of a
criminal prosecution is not to obtain a conviction, it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings, per Rand J. in Boucher v. The Queen, [1955] S.C.R. 16 at 23-24. See also Martin, The Role and Responsibility of the Defence Advocate (1969-70) 12 Crim. L.Q. 376 at 386-87.
25 ABA-MC EC 7-24, DR 7-106(C)(4); N.B. 8-C.14a,b,c; N.S. C-10.3, 10.4; Ont.
4.01(1) Commentary.
26 N.B. 8-C.14(d); N.S. C-10.5 to 10.7; Ont. 4.01(9) Commentary.
27 ABA-MC EC 7.7; B.C. 8(20); N.B. 8-C.15; N.S. C-10.8; Ont. 4.01(9)
Commentary.
28 Alta. 10-R.27(b).
29 Alta. 10-R.27(a).
30 ABA-MC EC 7-38, DR 7-106(C)(5); Ont. 4.01(7) and Commentary; Ont.
4.01(5).
31 ABA-MC EC 7-36, DR 7-106(C)(6); Ont. 4.01(6) and Commentary.
32 ABA-MC EC 7-19; N.B. 8-C.3(a),(c); Ont. 4.01(1) Commentary.
33 N.B. 8-C.5; Ont. 4.04 provides as follows: Subject to the direction of the
tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:
(a) during examination-in-chief, the examining lawyer may discuss with the witness any matter that has not been covered in the examination up to that point;
(b) during examination-in-chief by another lawyer of a witness who is unsympathetic to the lawyers cause, the lawyer not conducting the examination-in-chief may properly discuss the evidence with the witness;
(c) between completion of examination-in-chief and commencement of crossexamination of the lawyers own witness, the lawyer ought not to discuss the evidence given in chief or relating to any matter introduced or touched upon during the examination-in-chief;
(d) during cross-examination by an opposing lawyer, the witnesss own lawyer ought not to have any conversation with the witness about the witnesss evidence or any issue in the proceeding;
(e) between completion of cross-examination and commencement of reexamination, the lawyer who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on reexamination;
(f) during cross-examination by the lawyer of a witness unsympathetic to the cross-examiners cause, the lawyer may discuss the witnesss evidence with the witness;
(g) during cross-examination by the lawyer of a witness who is sympathetic to that lawyers cause, any conversations ought to be restricted in the same way as communications during examination-in-chief of ones own witness; and (h) during re-examination of a witness called by an opposing lawyer, if the
witness is sympathetic to the lawyers cause the lawyer ought not to discuss the evidence to be given by that witness during re-examination. The lawyer may, however, properly discuss the evidence with a witness who is adverse in interest. If any question arises whether the lawyers behaviour may be in violation of this rule, it will often be appropriate to obtain the consent of the opposing lawyer or leave of the tribunal before engaging in conversations that may be considered improper. However, It is submitted with respect that in some respects [this commentary] may inhibit the discovery of truth and go beyond what was the practice in High Court, per Sopinka and Polin, The Trial of an Action, p. 106.
34 ABA-MC EC 7-15; N.B. 8-C.16.
35 ABA-MC EC 7-29; Ont. 4.05.
CHAPTER X
THE LAWYER IN PUBLIC OFFICE
RULE
The lawyer who holds public office should, in the discharge of official duties, adhere to standards of conduct as high as those that these rules require of a lawyer engaged in the practice of law.1
Commentary
Guiding Principles
1. The Rule applies to the lawyer who is elected or appointed to legislative or administrative office at any level of government, regardless of whether the lawyer attained such office because of professional qualifications.2 Because such a lawyer is in the public eye, the legal profession can more readily be brought into disrepute by failure on the lawyers part to observe its professional standards of conduct.3
Conflicts of Interest
2. The lawyer who holds public office must not allow personal or other interests to conflict with the proper discharge of official duties. The lawyer holding part-time public office must not accept any private legal business where duty to the client will or may conflict with official duties. If some unforeseen conflict arises, the lawyer should terminate the professional relationship, explaining to the client that official duties must prevail. The lawyer who holds a full-time public office will not be faced with this sort of conflict, but must nevertheless guard against allowing the lawyers independent judgment in the discharge of official duties to be influenced by the lawyers own interest, or by the interests of persons closely related to or associated with the lawyer, or of former or prospective clients, or of former or prospective partners or associates.4
3. In the context of the preceding paragraph, persons closely related to or associated with the lawyer include a spouse, child, or any relative of the lawyer (or of the lawyers spouse) living under the same roof, a trust or estate in which the lawyer has a substantial beneficial interest or for which the lawyer acts as a trustee or in a similar capacity, and a corporation of which the lawyer is a director or in which the lawyer or some closely related or associated person holds or controls, directly or indirectly, a significant number of shares.5
4. Subject to any special rules applicable to a particular public office, the lawyer holding such office who sees the possibility of a conflict of interest should declare such interest at the earliest opportunity and take no part in any consideration, discussion or vote with respect to the matter in question.6
Appearances before Official Bodies
5. When the lawyer or any of the lawyers partners or associates is a member of an official body such as, for example, a school board, municipal council or governing body, the lawyer should not appear professionally before that body. However, subject to the rules of the official body, it would not be improper for the lawyer to appear professionally before a committee of such body if such partner or associate is not a member of that committee.7
6. The lawyer should not represent in the same or any related matter any persons or interests that the lawyer has been concerned with in an official capacity. Similarly, the lawyer should avoid advising upon a ruling of an official body of which the lawyer either is a member or was a member at the time the ruling was made.
Disclosure of Confidential Information8
7. By way of corollary to the Rule relating to confidential information, the lawyer who has acquired confidential information by virtue of holding public office should keep such information confidential and not divulge or use it even though the lawyer has ceased to hold such office. As to the taking of employment in connection with any matter in respect of which the lawyer had substantial responsibility or confidential information, see commentary 3 of the Rule relating to avoiding questionable conduct (Chapter XIX).9
Disciplinary Action
8. Generally speaking, a governing body will not be concerned with the way in which a lawyer holding public office carries out official responsibilities, but conduct in office that reflects adversely upon the lawyers integrity or professional competence may subject the lawyer to disciplinary action.10
Subscripts
1 Alta. 12-S.O.P.; ABA-MC 8.8; DR 8-101(A); ABA-MR 1.11; N.B. 17-R; N.S. R- 16; Ont. 6.05(1); Que. 3.05.09.
2 Common examples include Senators, Members of the House of Commons, members of provincial legislatures, cabinet ministers, municipal councillors, school trustees, members and officials of boards, commissions, tribunals and departments, commissioners of inquiry, arbitrators and mediators, Crown prosecutors and many others. For a general discussion, see Woodman, The Lawyer in Public Life, Pitblado Lectures (Manitoba, 1971), p. 129.
3 Ont. 6.05(1) Commentary; N.S. R-16 Guiding Principles, C-16.1.
4 ABA-MR 1.11(d); N.B. 17-C.2(a), (b), (c); N.S. C-16.2; Ont. 6.05(2) Commentary.
5 N.S. C-16.4.
6 N.B. 17-C.3; N.S. C-16.5; Ont. 6.05(2) Commentary.
7 N.B. 17-C.4; N.S. C-16.6; Ont. 6.05(4).
8 ABA-MC 9-101(A), (B); N.B. 17-C.5(a), (b); N.S. C-16.8; Ont. 3.05.10 Commentary.
9 ABA-MR 1.11(c); N.B. 17-C.6; N.S. C-16.8; Ont. 6.05(5) Commentary.
10 N.B. 17-C.9; N.S. C-16.9. In Barreau de Montreal v. Claude Wagner (1968), Q.B. 235 (Que. Q.B.) it was held that the respondent, then provincial Minister of Justice, was not subject to the disciplinary jurisdiction of the Bar in respect of a public speech in which he had criticized the conduct of a judge because he was then exercising his official or Crown functions. In Gagnon v. Bar of Montreal (1959), B.R. 92 (Que.) it was held that on the application for readmission to practice by a former judge, his conduct while in office might properly be considered by admissions authorities.
CHAPTER XI
FEES
RULE
The lawyer shall not:
(a) stipulate for, charge or accept any fee that is not fully disclosed, fair and reasonable;1
(b) appropriate any funds of the client held in trust or otherwise under the lawyers control for or on account of fees without the express authority of the client, save as permitted by the rules of the governing body.2
Commentary
Factors to be Considered
1. A fair and reasonable fee will depend on and reflect such factors as:
(a) the time and effort required and spent;
(b) the difficulty and importance of the matter;
(c) whether special skill or service has been required and provided;
(d) the customary charges of other lawyers of equal standing in the locality in like matters and circumstances;
(e) in civil cases the amount involved, or the value of the subject matter;
(f) in criminal cases the exposure and risk to the client;
(g) the results obtained;
(h) tariffs or scales authorized by local law;
(i) such special circumstances as loss of other employment, urgency and uncertainty of reward;
(j) any relevant agreement between the lawyer and the client.3
A fee will not be fair and reasonable and may subject the lawyer to disciplinary proceedings if it is one that cannot be justified in the light of all pertinent circumstances, including the factors mentioned, or is so disproportionate to the services rendered as to introduce the element of fraud or dishonesty, or undue profit.4
2. It is in keeping with the best traditions of the legal profession to reduce or waive a fee in cases of hardship or poverty, or where the client or prospective client would otherwise effectively be deprived of legal advice or representation.5
Avoidance of Controversy
3. Breaches of this Rule and misunderstandings about fees and financial matters bring the legal profession into disrepute and reflect adversely upon the administration of justice. The lawyer should try to avoid controversy with the client over fees and should be ready to explain the basis for charges, especially if the client is unsophisticated or uninformed about the proper basis and measurements for fees. The lawyer should give the client an early and fair estimate of fees and disbursements, pointing out any uncertainties involved, so that the client may be able to make an informed decision. When something unusual or unforeseen occurs that may substantially affect the amount of the fee, the lawyer should forestall misunderstandings or disputes by explaining this to the client.6
Interest on Overdue Accounts
4. Save where permitted by law or local practice, the lawyer should not charge interest on an overdue account except by prior agreement with the client and then only at a reasonable
rate.7
Apportionment and Division of Fees
5. The lawyer who acts for two or more clients in the same matter is under a duty to apportion the fees and disbursements equitably among them in the absence of agreement otherwise.8
6. A fee will not be a fair one within the meaning of the Rule if it is divided with another lawyer who is not a partner or associate unless (a) the client consents, either expressly or impliedly, to the mployment of the other lawyer and (b) the fee is divided in proportion to the work done and responsibility assumed.9
Hidden Fees
7. The fiduciary relationship that exists between lawyer and client requires full disclosure in all financial matters between them and prohibits the lawyer from accepting any hidden fees. No fee, reward, costs, commission, interest, rebate, agency or forwarding allowance or other compensation whatsoever related to the professional employment may be taken by the lawyer from anyone other than the client without full disclosure to and consent of the client. Where the lawyers fees are being paid by someone other than the client, such as a legal aid agency, a borrower, or a personal representative, the consent of such other person will be required. So far as disbursements are concerned, only bona fide and specified payments to others may be included. If the lawyer is financially interested in the person to whom the disbursements are made, such as an investigating, brokerage or copying agency, the lawyer shall expressly disclose this fact to the client.10
Sharing Fees with Non-Lawyers
8. Any arrangement whereby the lawyer directly or indirectly shares, splits or divides fees with notaries public, law students, clerks or other non-lawyers who bring or refer business to the lawyers office is improper and constitutes professional misconduct. It is also improper for the lawyer to give any financial or other reward to such persons for referring business.11
9. The lawyer shall not enter into a lease or other arrangement whereby a landlord or other person directly or indirectly shares in the fees or revenues generated by the law practice.12
Contingent Fees
10. It is proper for the lawyer to enter into an arrangement with the client for a contingent fee, if the fee is fair and reasonable and the lawyer adheres to any legislation, rules of court or local practice relating to such an arrangement.13
Subscripts
1 Alta. 13-S.O.P.; ABA-MC EC 2-17 to EC 2-19; ABA-MR DR 2-106; B.C. 9(1);
N.B. 9-R(a); N.S. R-12; Ont. 2.08(1); Que. 3.08.01.
2 N.B. 9-R(b); Ont. 2.08(12).
3 Alta. 13-R.1; ABA-MC DR 2-106(B); ABA-MR 1.5(a); N.B. 9-C.2(a); N.S. R-12 Guiding Principles; Ont. 2.08 Commentary; Que. 3.08.02.
4 N.B. 9-C.2(b).
5 ABA-MC EC 2-16, 2-25; N.B. 9-C.1; N.S. C-12.2; Ont. 2.08 Commentary.
6 Alta. 13-R.2, R.4; ABA-MR 1.5(b); N.B. 9-C.3(a), (b); N.S. C-12.1; Ont. 2.08
Commentary; Que. 3.08.04, 3.08.05.
7 N.B. 9-4(a), (b); N.S. C-12.3; Ont. 2.08 Commentary; Que. 3.08.07.
8 N.B. 9-C.6; N.S. C-12.4; Ont. 2.08(7).
9 Alta. 13-R.7(b); ABA-MC DR 2-107(A); ABA-MR 1.5(e); N.B. 9-C.7(ii); N.S. C- 12.5; Ont. 2.08(8).
10 B.C. 9(7) to 9(9); N.B. 9-C.9(a) to (c); N.S. C-12.6 to 12.8; Ont. 2.08
Commentary.
11 Alta. 13-R.7(c); B.C. 9(6); N.B. 9-C.8(i), (ii); N.S. C-12.9; Ont. 2.08(10); Que.
3.05.14.
12 ABA-MC EC 2-20, EC 5-7, DR 5-103(A)(2); N.B. 9-C.8(iii); N.S. C-12.10.
13 Alta. 13-R.3; ABA-MC EC 2-20; ABA-MR 1.5(c), (d)(2); N.B. 9-C.10; N.S. C-
12.11; Ont. 2.08(3). For many years, Ontario was the only jurisdiction in North America in which contingent fees were prohibited. In 2002, as a result of the Ontario Court of Appeals decision in McIntyre Estate v. Ontario (Attorney General) (2002), 61 O.R. (3d) 257, the Law Society of Upper Canada amended its Rules of Professional Conduct to allow lawyers to enter into contingent fee agreements except in family law or criminal or quasi-criminal matters: see Ont. 2.08 (3) (5) and accompanying commentary.
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