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CHAPTER 1
CANONS OF LEGAL ETHICS
[In force January 1, 1992]
These Canons of Legal Ethics are a general guide, and not a
denial of the existence of other duties equally imperative and of other rights, though not
specifically mentioned.
A lawyer is a minister of justice, an officer of the courts,
a client's advocate, and a member of an ancient, honourable and learned profession.
In these several capacities it is a lawyer's duty to promote
the interests of the state, serve the cause of justice, maintain the authority and dignity
of the courts, be faithful to clients, be candid and courteous in relations with other
lawyers and demonstrate personal integrity.
1. To the state
(1) A lawyer owes a duty to the state, to maintain its integrity
and its law. A lawyer should not aid, counsel, or assist any person to act in any way
contrary to the law.
(2) When engaged as a Crown prosecutor, a lawyer's primary duty
is not to seek a conviction but to see that justice is done; to that end the lawyer should
make timely disclosure to the defence of all facts and known witnesses whether tending to
show guilt or innocence, or that would affect the punishment of the accused.
(3) A lawyer should accept without hesitation, and if need be
without fee or reward, the cause of any person assigned to the lawyer by the court, and
exert every effort on behalf of that person.
2. To courts and tribunals
(1) A lawyer's conduct should at all times be characterized by
candour and fairness. The lawyer should maintain toward a court or tribunal a courteous
and respectful attitude and insist on similar conduct on the part of clients, at the same
time discharging professional duties to clients resolutely and with self-respecting
independence.
(2) Judges, not being free to defend themselves, are entitled to
receive the support of the legal profession against unjust criticism and complaint.
Whenever there is proper ground for serious complaint against a judicial officer, it is
proper for a lawyer to submit the grievance to the appropriate authorities.
(3) A lawyer should not attempt to deceive a court or tribunal by
offering false evidence or by misstating facts or law and should not, either in argument
to the judge or in address to the jury, assert a personal belief in an accused's guilt or
innocence, in the justice or merits of the client's cause or in the evidence tendered
before the court.
(4) A lawyer should never seek privately to influence a court or
tribunal, directly or indirectly, in the lawyer's or a client's favour, nor should the
lawyer attempt to curry favour with juries by fawning, flattery, or pretended solicitude
for their personal comfort.
Annotations
3. To the client
(1) A lawyer should obtain sufficient knowledge of the relevant
facts and give adequate consideration to the applicable law before advising a client, and
give an open and undisguised opinion of the merits and probable results of the client's
cause. The lawyer should be wary of bold and confident assurances to the client,
especially where the lawyer's employment may depend on such assurances. The lawyer should
bear in mind that seldom are all the law and facts on the client's side, and that audi
alteram partem is a safe rule to follow.
(2) A lawyer should disclose to the client all the circumstances
of the lawyer's relations to the parties and interest in or connection with the
controversy, if any, which might influence whether the client selects or continues to
retain the lawyer. A lawyer shall not act where there is a conflict of interests between
the lawyer and a client or between clients.
(3) Whenever the dispute will admit of fair settlement the client
should be advised to avoid or to end the litigation.
(4) A lawyer should treat adverse witnesses, litigants, and
counsel with fairness and courtesy, refraining from all offensive personalities. The
lawyer must not allow a client's personal feelings and prejudices to detract from the
lawyer's professional duties. At the same time the lawyer should represent the client's
interests resolutely and without fear of judicial disfavour or public unpopularity.
(5) A lawyer should endeavour by all fair and honourable means to
obtain for a client the benefit of any and every remedy and defence which is authorized by
law. The lawyer must, however, steadfastly bear in mind that this great trust is to be
performed within and not without the bounds of the law. The office of the lawyer does not
permit, much less demand, for any client, violation of law or any manner of fraud or
chicanery. No client has a right to demand that the lawyer be illiberal or do anything
repugnant to the lawyer's own sense of honour and propriety.
(6) It is a lawyer's right to undertake the defence of a person
accused of crime, regardless of the lawyer's own personal opinion as to the guilt of the
accused. Having undertaken such defence, the lawyer is bound to present, by all fair and
honourable means and in a manner consistent with the client's instructions, every defence
that the law of the land permits, to the end that no person will be convicted but by due
process of law.
(7) A lawyer should not, except as by law expressly sanctioned,
acquire by purchase or otherwise any interest in the subject-matter of the litigation
being conducted by the lawyer. A lawyer should scrupulously guard, and not divulge or use
for personal benefit, a client's secrets or confidences. Having once acted for a client in
a matter, a lawyer must not act against the client in the same or any related matter.
(8) A lawyer must record, and should report promptly to a client
the receipt of any moneys or other trust property. The lawyer must use the client's moneys
and trust property only as authorized by the client, and not co-mingle it with that of the
lawyer.
(9) A lawyer is entitled to reasonable compensation for services
rendered, but should avoid charges which are unreasonably high or low. The client's
ability to pay cannot justify a charge in excess of the value of the service, though it
may require a reduction or waiver of the fee.
(10) A lawyer should try to avoid controversies with clients
regarding compensation so far as is compatible with self-respect and with the right to
receive reasonable recompense for services. A lawyer should always bear in mind that the
profession is a branch of the administration of justice and not a mere money-making
business.
(11) A lawyer who appears as an advocate should not submit the
lawyer's own affidavit to or testify before a court or tribunal except as to purely formal
or uncontroverted matters, such as the attestation or custody of a document, unless it is
necessary in the interests of justice. If the lawyer is a necessary witness with respect
to other matters, the conduct of the case should be entrusted to other counsel.
Annotations
4. To other lawyers
(1) A lawyer's conduct toward other lawyers should be
characterized by courtesy and good faith. Any ill feeling that may exist between clients
or lawyers, particularly during litigation, should never be allowed to influence lawyers
in their conduct and demeanour toward each other or the parties. Personal remarks or
references between lawyers should be scrupulously avoided, as should quarrels between
lawyers which cause delay and promote unseemly wrangling.
(2) A lawyer should neither give nor request an undertaking that
cannot be fulfilled and should fulfil every undertaking given. A lawyer should never
communicate upon or attempt to negotiate or compromise a matter directly with any party
who the lawyer knows is represented therein by another lawyer, except through or with the
consent of that other lawyer.
(3) A lawyer should avoid all sharp practice and should take no
paltry advantage when an opponent has made a slip or overlooked some technical matter. A
lawyer should accede to reasonable requests which do not prejudice the rights of the
client or the interests of justice.
Annotations
5. To oneself
(1) A lawyer should assist in maintaining the honour and
integrity of the legal profession, should expose without fear or favour before the proper
tribunals, unprofessional or dishonest conduct by any other lawyer and should accept
without hesitation a retainer against any lawyer who is alleged to have wronged the
client.
(2) It is the duty of every lawyer to guard the Bar against the
admission to the profession of any candidate whose moral character or education renders
that person unfit for admission.
(3) A lawyer should make legal services available to the public
in an efficient and convenient manner that will command respect and confidence. A lawyer's
best advertisement is the establishment of a well-merited reputation for competence and
trustworthiness.
(4) No client is entitled to receive, nor should any lawyer
render any service or advice involving disloyalty to the state, or disrespect for the
judicial office, or the corruption of any persons exercising a public or private trust, or
deception or betrayal of the public.
(5) A lawyer should recognize that the oaths taken upon admission
to the Bar are solemn undertakings to be strictly observed.
(6) All lawyers should bear in mind that they can maintain the
high traditions of the profession by steadfastly adhering to the time-honoured virtues of
probity, integrity, honesty and dignity.
* * *
ANNOTATIONS:
Canon 2 - To courts and tribunals
Where the issue of liability has been settled and where
the issue of quantum is to be argued, and where the plaintiff in the matter
dies, a lawyer acting for the plaintiff has a duty to inform both the clerk
of the court and opposing counsel of the plaintiffs death.
EC March 1993, item 7
Where a plaintiff in a personal injury litigation dies intestate shortly after judgment is pronounced,
where the order reflecting the judgment has not yet been entered and there
are outstanding matters to be resolved, and where no administrator has
been appointed, plaintiffs counsel is under an ethical obligation to notify
forthwith both the court and opposing counsel of the death of his client.
EC April 1994, item 5
In the absence of official court approval or a Law
Society rule that stipulates how a lawyer should dress for court, it is
inappropriate for a lawyer to depart from customary dress when required
to be gowned.
EC May 1997, item 9
A lawyer who is negligent and reckless and displays
a casual disregard for the truth in making misrepresentations to the court
and to the Law Society, is guilty of professional misconduct.
DCD 01-16
Letters to the Law Society, with copies to the client
and another lawyer, which criticize the judiciary and another lawyer are
inappropriate. It is not in the best interests of the justice system, clients,
or the profession for lawyers to express themselves in a fashion that promotes
acrimony or intensifies the stress and difficulty that people are under.
2003
LSBC 30
Lawyers robe should not bear the words duty counsel or
any other markings.
EC June 2003, item 5
A lawyers intemperate and disrespectful behaviour
in court can amount to professional misconduct and conduct unbecoming a
member.
DD
04/02
Canon 3 - To the client
A lawyer billed his client for fees based on a percentage
of funds held in trust, even though his retainer agreement required that
he bill on an hourly rate. He did so because he realized his neglect in
accurately recording his time meant he would otherwise not be remunerated
for that time. The bill was far in excess of the value of the services
provided when calculated on an hourly basis. His conduct constituted professional
misconduct.
DCD 01-27
A lawyer charged and billed to clients approximately
$75 in personal disbursements, which he believed represented a fair set-off
for disbursements that he paid personally on their behalf while working
at home. Although it was done for administrative convenience, it constituted
professional misconduct.
2004
LSBC 38
A lawyer was found guilty of professional misconduct
for abandoning a criminal client in mid-trial (to attend to a new, unrepresented
client in another courtroom) and in treating the judge with disrespect.
2005
LSBC 10
Subject to the caveat that a lawyer must not represent a client who is acting out of malice, a lawyer is entitled to take account of a client’s ability to pay in setting a reduced fee, or in acting without fee, and the lawyer is under no obligation to consider an opposing party’s circumstances in determining the fee.
EC December 2007, item 6
Canon 4 -To other lawyers
When a caveat has been filed in one Supreme Court registry
but not in others through inadvertence, it is sharp practice for a lawyer
to apply for letters of administration without notifying the lawyer who
filed the caveat of the proposed application.
EC March 1996, item 7
A lawyer representing plaintiffs learned from the trial
coordinator that the trial had been removed from the trial list and agreed
to inform opposing counsel of the adjournment. However, he delayed informing
opposing counsel of the adjournment for fear of jeopardizing a settlement
opportunity. The lawyers failure to inform opposing counsel constituted
professional misconduct.
DCD 97-01
Failure to advise opposing counsel that you are not
the lawyer for one of the parties, knowing they believe that to be the
case, constitutes professional misconduct.
DCD 99-04
A lawyer who assisted his client to carry out certain
corporate procedures using the proxy of an unrepresented shareholder, without
the knowledge of or notice to the shareholder, is sharp practice amounting
to professional misconduct.
DCD 00-10
Failure to immediately send material to the other party
as required by a court order does not constitute professional misconduct
if it is due to inadvertence, not impropriety. Failing to provide information
to the other party because of limitations of the retainer does not amount
to professional misconduct.
DCD 00-16
A lawyer who had an inappropriate verbal exchange with
another lawyer during a trial adjournment and pressed his chest against
hers was guilty of professional misconduct, even though his actions were
unplanned and were not intended to intimidate. Whenever physical contact
occurs between lawyers in a confrontational situation, it will be treated
as aggravated and unjustified conduct.
DCD 01-09 and DCD 01-15
A lawyer who was representing the vendor in a real
estate transaction gave his undertaking to the purchasers solicitor that
he would pay all property tax arrears, penalties, and outstanding utility
charges from the sale proceeds. He advised the purchasers lawyer that
he had completed his undertakings, but the vendor himself had paid the
charges with a cheque that was returned for insufficient funds. It was
professional misconduct to rely on his client to pay the charges.
DCD 02-09
It is professional misconduct to make statements, at
a social gathering, about another lawyers alleged professional negligence,
and to make allegations that the lawyer will be disbarred.
DCD 03-10
Purporting to serve a writ by fax, knowing it is not
proper service, is professional misconduct.
2003
LSBC 44
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