The Code of Professional Conduct for British Columbia
An ethical guide for lawyers
On January 1, 2013 the Law Society of BC will retire the Professional Conduct Handbook. Adopted in 1993, the Handbook has been the ethical guide for the legal profession in BC. Replacing it is the Code of Professional Conduct for British Columbia (BC Code).
The BC Code is the result of years of work, both at the national and provincial level. While the ethical principles contained in the Professional Conduct Handbook have been preserved in the BC Code, the new document should provide more detailed guidance for lawyers facing an ethical dilemma.
A push for harmonized ethical standards
The origins of the new BC Code date back more than eight years. In 2004, there was growing awareness among provincial law societies, as well as their coordinating body, the Federation of Law Societies of Canada, that the Canadian legal profession needed greater uniformity among ethical and professional codes of conduct.
“Mobility was the primary issue,” explained Jack Olsen, an ethics advisor with the Law Society. In 2005, the Law Society appointed Olsen and Life Bencher David Zacks, QC as BC’s representatives on the committee that set out to work on a national model code of conduct upon which law societies could base their provincial codes.
“The whole idea of mobility has gained great momentum in the past 10 to 15 years, with lawyers seeking the ability to readily move from one province to another. With that comes the question of uniform standards,” said Olsen. “If lawyers are moving between provinces and territories, and the standards are dramatically different, it is going to require significantly more adjustment.”
The Model Code of Professional Conduct and conflicts
Following considerable effort at both the national and provincial level, the Federation adopted most sections of the Model Code in 2009. Provisions that dealt with the future harm exception to the requirement of confidentiality were adopted in 2010. But the matter of conflicts of interest proved a sticking point. Those provisions were not adopted by the Federation until 2011, and even today, the debate is not over.
The issue surrounding conflicts boiled down to a difference of opinion between the Canadian Bar Association and the Federation when it came to the section that dealt with acting against current clients.
The Federation, bearing in mind the mandate of law societies to protect the public interest, was of the view that, in order to act against a current client, a lawyer must have client consent. The advisory committee on conflicts recommended the following:
A lawyer must not represent a client whose interests are directly adverse to the immediate legal interests of a current client — even if the matters are unrelated — unless both clients consent.
The Canadian Bar Association was of a different view. It argued the Federation’s approach was rigid and overly broad and that, in unrelated matters, client consent should not be required if the lawyer believed there was no conflict of interest and there was no real or substantial risk to the representation of a client.
The issue was referred to the Federation’s Standing Committee on the Model Code of Professional Conduct. Committee chair and BC Life Bencher Gavin Hume, QC said the Federation ultimately adopted a rule that favoured obtaining client consent. “The Federation took that position because of its public interest perspective,” said Hume, who is also the Law Society’s representative to the Federation Council.
However, the debate over acting against current clients is not over. Hume points to a case going to the Supreme Court of Canada, Canadian National Railway v. McKercher LLP.
That case involves a class action lawsuit against Canadian National Railway and others. The representative plaintiff, Gordon Wallace, alleged prairie farmers had been over-charged for grain transportation for the last 25 years. When the claim was launched, Wallace’s law firm, McKercher LLP, was also acting for Canadian National Railway on several other matters, and CN applied to have McKercher LLP disqualified from acting for Wallace.
“All of this is going to be resolved in a case coming before the Supreme Court of Canada,” said Hume. “So the debate continues.”
In BC, the Model Code was carefully reviewed by the Ethics Committee and put out to the profession for analysis and comment. The Benchers approved the portions of the code in April 2011 that did not deal with conflicts of interest, and then adopted the conflicts portion in March 2012. Some sections of the Model Code were modified to improve its use in BC.
“We took the approach that, if it was important or unique to BC, we would make a change,” explained Hume.
One instance where the BC Code differs from the Model Code is in marketing. The Model Code lists specific activities that could contravene the rules, for example suggesting superiority over other lawyers. The Model Code also gives explicit guidelines regarding the advertising of fees. The marketing rules in the BC Code, while not dissimilar in intent, are considered more liberal than their national counterparts and do not specifically deal with those issues.
Hume stresses, however, that the BC Code is a “living document” and subject to change. “We are going back to the Federation to propose changes to reflect our thinking, but if they don’t accept it, then BC may well move back to the Model Code standard.”
The BC Code and the Professional Conduct Handbook
The BC Code, like the Professional Conduct Handbook that came before it, is the regulatory guide regarding lawyers’ ethical obligations. Olsen says, in his experience, ethics are an important part of lawyers’ professional lives.
“We have over 6,000 inquiries a year from members relating to practice and ethical questions,” said Olsen. “And that certainly is an indication that lawyers are very much alive to the ethical questions that can arise in practice.”
The BC Code has been designed as a reference tool to help assist lawyers and the Law Society in answering those ethical questions. The ethical guidelines familiar from the Handbook have been preserved in the BC Code, but they have been expressed in a way that is expected to make it easier for the profession to use.
“The principles are the same, but the manner of expressing those principles is better,” said Hume. He describes the Handbook as a kind of “statutory” document, similar to legislation. The BC Code, on the other hand, provides a rule and then additional commentary on how the rule operates.
For example, the rule in the BC Code regarding acting against former clients corresponds to that in the Handbook, but the BC Code provides the following commentary:
This Rule prohibits a lawyer from attacking legal work done during the retainer, or from undermining the client’s position on a matter that was central to the retainer. It is not improper, however, for a lawyer to act against a former client in a matter wholly unrelated to any work the lawyer has previously done for that person if previously obtained confidential information is irrelevant to that matter.
“This is going to be of greater assistance to the profession because there will be more explanation provided with respect to the intent of a particular rule,” said Hume.
Implementation across Canada
BC is one of six Canadian provinces that have either adopted or implemented the Model Code. Also on the list are Alberta, Manitoba, Saskatchewan, Nova Scotia, Newfoundland and Labrador. In the other provinces, the code is still under review.
“Canadian lawyers are becoming more and more mobile every year,” said President Bruce LeRose, QC. “Harmonizing the ethical standards across the country is a big improvement on the current patchwork of ethical rules and regulations.”
Applying the same ethical standards across the country is one of several national initiatives aimed at standardizing the overall regulatory framework for lawyers. LeRose also points to the pilot project designed to test uniform standards for disciplinary regulation, as well as efforts to create national standards for admission to the profession.
“The Law Society of BC has been deeply involved in these initiatives and I am glad we continue to be a leader among Canadian law societies,” said LeRose. “Harmonizing our standards should help create a more effective, efficient legal profession.”