Annotations to Chapter 5

Annotations to rule 5.1-1 Advocacy

Where a court or tribunal has made a without notice order, and the lawyer who obtained the order later learns of material facts adverse to the interests of the lawyer’s client, the lawyer must make timely disclosure of those facts to the tribunal that granted the order. [PCH]
EC June 2011, item 4

Lawyers have a right and, arguably, a duty to criticize tribunals in some circumstances but such criticism must be measured against the public’s reasonable expectations of the lawyer’s professionalism. [PCH]
Joseph Groia v. The Law Society of Upper Canada, 2015 ONSC 686 (CanLII) – 2015-02-02, CanLII - 2015 ONSC 686 (CanLII)
Law Society of Upper Canada v. Groia, 2012 ONLSHP 94, 2013 ONLSAP 41, CanLII - 2013 ONLSAP 41 (CanLII)
Dore v. Barreau du Quebec, 2012 SCC 12, CanLII - 2012 SCC 12 (CanLII)

Annotations to rule 5.1-2 Advocacy

A lawyer has an ethical duty to exercise due diligence to ensure that a client makes the disclosure of documents required by the Rules of Court. That duty is not altered by the change from old Rule 26(1) to new Rule 7-1(1) in the Rules, although the standard to which the client must conform is different under the new rule. [PCH]
EC April 2010, item 3

It is not proper for a lawyer to assist a client to achieve a settlement that attempts to prevent a person from making a criminal complaint. [PCH]
EC May 1996, item 7

Professional Conduct Handbook, Chapter 1, Rule 1(1), Chapter 1, Rule 1 and Chapter 8, Rule 1(b) together impose a duty on a lawyer to decline to assist a client who the lawyer knows is making false representations to a regulatory authority. In this context, the word knows bears the ordinary meaning it has in criminal and tort law and includes constructive knowledge. Where the lawyer has no knowledge that the representations of the client are false, there is no duty on the lawyer to verify the accuracy of information given to a regulatory authority. However, where a lawyer has information that arouses suspicion about the accuracy of facts the client has given, the lawyer has an obligation to ensure the facts are accurate before making a submission containing those facts to a regulatory body. [PCH]
EC April 1996, item 9

The plaintiff in personal injury litigation died intestate shortly after judgment was pronounced, the order reflecting the judgment had not yet been entered, there were outstanding matters to be resolved, and no administrator had been appointed. The plaintiff's counsel was under an ethical obligation to notify both the court and opposing counsel of his client's death. [PCH]
EC April 1994, item 5

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 plaintiff's death. [PCH]
EC March 1993, item 7

Annotations to rule 5.1-5 Courtesy

A lawyer became involved in verbal altercations with attendants of a towing truck tow yard when his client’s car was impounded in the yard. He called police and stated “talk to these idiots because otherwise you’ll have to send a police officer probably to arrest me because I’m going to go get a crowbar and smash up the place.” The statement was overheard by an employee of the tow yard. A majority of the Review Board found that, although this statement was not meant to be a threat, it was a marked departure from the standard of conduct the Law Society expects from its members and constituted professional misconduct.
2015 LSBC 45

A lawyer stated to a social worker whom he did not know that he should “shoot her” because she “takes away too many kids.” The comment was made inside a courthouse (but outside a courtroom) with other persons present. The social worker felt threatened by the comment; the lawyer said it was a poor attempt at a joke. The Review Board upheld the decision of the hearing panel that the remarks constituted a marked departure from the conduct the Law Society expects of lawyers.
2015 LSBC 34

A lawyer was found guilty of professional misconduct for using profanity in circumstances where he was provoked. The majority was of the view such conduct would never be excusable. The minority, while agreeing that the use of profanity in these circumstances was inexcusable, left open the question whether it might excusable in different circumstances.
2014 LSBC 08

Annotations to rule 5.1-6 Undertakings

Absent an order of the Court, there is an implied undertaking on a recipient of a “Stinchcombe package” from the Crown not to disclose its contents for any collateral purpose. [PCH]
Wong v. Antunes, 2009 BCCA 278

There is an implied undertaking by parties in a civil litigation to keep information obtained in the discovery process confidential. A party to the proceeding may not use the evidence for any other purpose than that required for the conduct of the litigation, and may not share it with others outside of this purpose without leave of the court. [PCH]
Juman v. Doucette, 2008 SCC 8

Annotations to rule 5.2-1 Submission of evidence

Where there is a strong chance that a lawyer will be obliged to give evidence if the matter proceeds to trial, it would be improper to continue as counsel unless other counsel is ready to assume conduct of the matter without interruption if the lawyer's evidence is required. [PCH]
EC September 30, 2004, item 6

A lawyer who is a shareholder in a company is not prohibited from appearing on the company's behalf without fee and as a shareholder, not as a lawyer. In such circumstances, the lawyer is not bound by Chapter 8, Rule 9 of the Professional Conduct Handbook. [PCH]
EC September 1997, item 9

Annotation to rule 5.2-2 Appeals

The mere potential that a lawyer acting as counsel at a trial will be called as a witness at the trial is not a sufficient basis to disqualify the lawyer. The appropriate time to bring an application to disqualify counsel is once it becomes apparent that the lawyer will be required as a witness at the trial. [PCH]
Gardner v. Viridis Energy Inc. , 2012 BCSC 19

Annotations to section 5.3 Interviewing witnesses

A lawyer must notify an opposing party’s counsel when the lawyer is proposing to contact an opposing party’s expert.
Benchers' Bulletin, Summer 2014

It is not improper for a lawyer to request a witness to decline to talk to the other side unless he is present. [PCH]
EC May 1997, item 8

Annotation to section 5.6-1 Encouraging respect for the administration of justice

[BC Code] refers to an annotation that was created during the time the BC Code was in effect (from January 1, 2013) and is not based on or does not refer to a provision of the Professional Conduct Handbook.

[PCH] refers to an annotation to the former Professional Conduct Handbook, which was in effect from May 1, 1993 to December 31, 2012. Lawyers should consider the possible differences between the Handbook and the BC Code when determining the extent to which an annotation is still relevant.

EC refers to Ethics Committee minutes. For example, the reference "EC March 2005, item 6" refers to item 6 of the Ethics Committee minutes in March 2005.

DD refers to Discipline Digest. For example, the reference "DD 04-05" refers to discipline digest number five in 2004.

DCD refers to Discipline Case Digest. For example, the reference "DCD 01-27" refers to discipline case number 27 in 2001. (Note that in 2007 Discipline Case Digests were phased out and became Discipline Digests.)

LSBC refers to Law Society hearing reports. For example, the reference "2003 LSBC 20" refers to hearing report number 20 in 2003.

For more information on the annotated BC Code, see the Introduction to the Code of Professional Conduct for BC.

Annotations to Chapter 5 – Relationship to the Administration of Justice