Archived annotations to the BC Code

Archived annotation to Chapter 1 – Interpretation and Definitions

In determining lawyers’ professional obligations, the BC Code must be consulted in its entirety and lawyers should be guided equally by the language in the rules, commentary and appendices.
EC April 2013

Archived annotations to Chapter 2 – Standards of the Legal Profession

Archived annotations to rule 2.1-2 To courts and tribunals

Lawyers robe should not bear the words duty counsel or any other markings. [PCH]
EC June 2003, 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. [PCH]
EC May 1997, item 9

A lawyer was found guilty of professional misconduct by improperly withdrawing from a criminal trial and abandoning his client in mid-trial, and by being discourteous and disrespectful to the court. [PCH]
DD 2008 No. 1 March
2007 LSBC 55

A lawyers intemperate and disrespectful behaviour in court can amount to professional misconduct and conduct unbecoming a member. [PCH]
DD 04/02

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. [PCH]
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. [PCH]
2003 LSBC 30

Archived annotations to rule 2.1-3 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. [PCH]
DCD 01-27

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. [PCH]
2005 LSBC 10

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. [PCH]
2004 LSBC 38

Archived annotations to rule 2.1-4 To other lawyers

A lawyer who made arrogant, unnecessary and excessively abusive remarks to another lawyer that go beyond mere rudeness or discourtesy was found to be guilty of professional misconduct.
2013 LSBC 25

A lawyer was found guilty of professional misconduct for posting comments on the internet and sending a fax to another lawyer containing discourteous and personal remarks about that lawyer. [PCH]
DD 2012 No. 1
2011 LSBC 29

A lawyer negotiated a personal injury claim for clients and received settlement funds in excess of what the lawyer believed was agreed and to which the clients were entitled. The lawyer’s failure to make the obviously necessary inquiry of the opposing party was questionable conduct casting doubt on the lawyer’s competence and also reflecting adversely on the integrity of the legal profession and amounted to professional misconduct. [PCH]
DD 2012 : No. 1
2011 LSBC 26

A lawyer who made unfounded but serious allegations about the conduct of another lawyer in representing an accused person and incompetently performed his duties as counsel in the prosecution of four appeals in the Court of Appeal was found guilty of professional misconduct. [PCH]
DD 2008 No. 2 May
2008 LSBC 13
(see also BC Court of Appeal decision in Goldberg v. Law Society of British Columbia, 2009 BCCA 147)

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. [PCH]
DCD 03-10

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. [PCH]
DCD 02-09

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. [PCH]
DCD 01-09 and DCD 01-15

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. [PCH]
DCD 00-16

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. [PCH]
DCD 00-10

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. [PCH]
DCD 99-04

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. [PCH]
DCD 97-01

Purporting to serve a writ by fax, knowing it is not proper service, is professional misconduct. [PCH]
2003 LSBC 44

Case Law

In upholding a Law Society decision to discipline a lawyer, the BC Court of Appeal concluded that if a lawyer cannot assemble admissible evidence to make a plausible case of incompetency of another lawyer, then he should not pursue the issue. [PCH]
Goldberg v. Law Society of British Columbia, 2009 BCCA 147
(see also Law Society decision 2008 LSBC 13)

Archived annotations to section 2.2 Integrity

Committing an indecent act in public was dishonourable conduct that reflected adversely on the integrity of the legal profession, and constituted conduct unbecoming a member of the Law Society. [PCH]
DD 2005 No 2 July-August

A lawyers conduct was found to constitute conduct unbecoming when he plead guilty to criminal sexual offences and was found to have sworn a false answer to a question on his application for enrolment to the Law Society. [PCH]
DCD 02-18

A lawyer was convicted of an offence under the provincial Prevention of Cruelty to Animals Act for failing to care for a herd of cattle. Her negligence towards her legal responsibility harmed the standing of the legal profession in the eyes of right-thinking members of the public and constituted conduct unbecoming a member of the Law Society. [PCH]
DCD 01-14

Possession of cocaine for personal use amounts to conduct unbecoming a lawyer. [PCH]
DCD 01-07

A lawyer who filed incorrect proofs of claim, among other things, on behalf of a family member in a bankruptcy was acting in a business capacity, not as a lawyer at the time. Nevertheless, his actions amounted to conduct unbecoming a member. [PCH]
DCD 00-08

A lawyer who shot a bear without a license and misled conservation officers and taxidermists into believing that his friend had shot the bear was guilty of conduct unbecoming. [PCH]
DCD 99-18

A lawyer falsely stated to the media that he had not invested in a joint venture to develop a power project when, in fact, a company in which the lawyer was a majority and controlling shareholder had purchased $1 million US of shares in the project through two other corporations. He was found guilty of conduct unbecoming. [PCH]
DCD 99-16

While acting as trustee, although not in his capacity as a lawyer, a lawyer breached the terms of a trust agreement by improperly releasing funds held in trust. These actions constituted conduct unbecoming. [PCH]
DCD 99-15

A lawyer offered to introduce a client to persons in the Philippines who had $10 million in cash that they wished to transfer out of the country without first satisfying himself that the transaction was legitimate. Because the lawyer became involved before he had made inquiries that satisfied him on an objective basis that the transaction was legitimate, he was found guilty of professional misconduct and conduct unbecoming. [PCH]
DCD 94-5

A lawyer who conducted a sexual relationship with the wife of a client of his firm, lied about the relationship to the client and another lawyer in the firm, and continued to involve himself in legal work for the client was found guilty of conduct unbecoming. [PCH]
DCD 89-3

A lawyer who threatened and pointed a firearm at someone was guilty of dishonorable or questionable conduct that casts doubt on the lawyer's professional integrity or competence, or reflects adversely on the integrity of the legal profession or the administration of justice. [PCH]
2005 LSBC 42

A lawyer who assaulted his girlfriend was guilty of dishonourable conduct and conduct unbecoming a member. [PCH]
2005 LSBC 29

Archived annotations to rule 2.2-1 Integrity

The issue of a lawyer copying a transcript to provide to another lawyer or party in the same proceeding is a matter of contract between court reporters and lawyers, and is not ordinarily a matter of professional conduct.
EC April 2012

A lawyer was found guilty of professional misconduct in assisting a client to avoid a court ordered payment of a family support obligation by accepting the client’s instructions to hold the client’s support payment in trust when the lawyer knew or ought to have known he was facilitating a breach of a court order.
2013 LSBC 18

It is professional misconduct for a lawyer to agree to pay a sum of money to a complainant in exchange for the complainant to drop a complaint to the Law Society made against him.
2013 LSBC 09

Archived annotations to Chapter 3 – Relationship to Clients

Archived annotations to rule 3.1-1 Definitions

It is proper for lawyers to bid on and deliver services through the Legal Services Society proposed block contract system, provided they consider whether their resources permit them to provide services under the proposed contract system before agreeing to act. [PCH]
EC November 1997, item 6

A finding of incompetence requires a pattern of error. Accordingly, one instance of negligence did not amount to incompetence where the lawyer did not appear at a hearing because he had not received instructions from his client and believed his staff had adjourned the matter. [PCH]
DCD 00-01

A lawyer received postdated cheques from his client as the deposit in a real estate transaction. He held the cheques but did not disclose that they were postdated to the agent who assumed the cheques had been deposited. The lawyer acted incompetently in ceasing to act or in failing to seek instructions from his client to disclose the postdated cheques. As he intended no gain for himself, his conduct was not disgraceful or dishonourable. [PCH]
DCD 99-08

Archived annotations to rule 3.1-2 Competence

Case law

Archived annotations to rule 3.2-1 Quality of service

A lawyer who provides limited scope legal services should inform the client about the scope of services and the limits and risks associated with the limited services provided. [PCH]
Recommendation 13 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

A lawyer who fails to properly review a file and breaches an undertaking given by another lawyer in the firm who previously had conduct of the file is practicing at a standard far below that which the public and profession are entitled to expect. His conduct constitutes the incompetent performance of duties undertaken in his capacity as a lawyer. [PCH]
DCD 01-24

Abandoning an appeal without client instructions and swearing a false affidavit saying those were the client's instructions constitutes professional misconduct. [PCH]
DCD 01-08

A lawyer who represented a client on a complaint to the BC Council of Human Rights failed to advise the client in a timely way that he had received from the Council a summary of their investigation, failed to seek instructions from the client on whether to file a response to the Council, and failed to seek an extension of time for the filing. The lawyer was found guilty of professional misconduct. [PCH]
DCD 94-8

Archived annotations to rule 3.2-5 Threatening criminal or regulatory proceedings

While attempting to settle an error or omissions claim against a real estate licensee, a lawyer is not prohibited from seeking the agreement of a person not to initiate or proceed with a complaint to the Real Estate Council as part of the settlement. [PCH]
EC March 2000, item 9

A lawyer failed to report to the Law Society a judgment for costs obtained against him in his own matrimonial proceeding within the time period specified by Rule 5-10, and sought to impose a settlement condition on his spouse which required her to withdraw her complaint against him to the Law Society, thereby committing professional misconduct. [PCH]
DCD 99-27

It is professional misconduct for a lawyer to attempt to impose, as a condition of settling a fee dispute with former clients, a requirement that they withdraw complaints made to the Law Society. [PCH]
DCD 93-15

Archived annotations to rule 3.2-7 Dishonesty, fraud by client

A lawyer who represents a client conducting a fraudulent scheme is guilty of professional misconduct, even if he does not know the scheme is fraudulent, if he provides services to the client, receives money into his trust account, and recklessly makes representations to others about the scheme. [PCH]
DCD 03-08

A lawyer was guilty of professional misconduct when, prior to his retainer, he accepted a recording of a telephone conversation between his client's wife and her lawyer (without consent of either party), prepared a transcript of the recording, and used the transcript to prepare for an examination for discovery. [PCH]
2005 LSBC 23

A lawyer held $25,000 of his clients money in trust, subject to the terms of an irrevocable assignment. The client set up the irrevocable assignment to preserve funds against a possible demand from CCRA. The lawyer did not reflect on the appropriateness of the plan and his participation in the misleading scheme constituted professional misconduct. [PCH]
2004 LSBC 14

It is conduct unbecoming a lawyer to be willfully blind to a client's intention to evade GST and income tax. [PCH]
2003 LSBC 44

Archived annotations to rule 3.3-1 Confidential information

Where the court requires parties to litigation to exchange a list of witnesses prior to a scheduled pre-trial confidence, and counsel have received instructions not to disclose this information, the lawyer can apply to the court for an exemption from this requirement. If the exemption is refused, the lawyer must decline to accept the client's instructions and, if necessary, withdraw from the retainer. [PCH]
EC October 2002, item 10

A lawyer may not disclose confidential client information in order to assist in proving his case in a contractual dispute with a former partner. [PCH]
EC July 2000, item 8

A lawyer is subject to a duty of confidentiality to a prospective client who has disclosed confidential information to the lawyer notwithstanding that a retainer was never concluded. [PCH]
EC January 1994, item 4

It is not improper for a lawyer to provide confidential drafting assistance to clients. Unless otherwise required by law or a court, the discretion to divulge the identity of the lawyer who provided drafting assistance should lie with the client. [PCH]
Recommendation 4 of Report of Unbundling of Legal Services Task Force p. 20; approved by Benchers April 2008

Case law

The plaintiffs sought an order requiring a defendant law firm to produce documents for discovery and to produce a list of documents setting out the documents over which privilege was claimed. The firm made a blanket claim of privilege, stating that its clients had refused to waive privilege. The firm claimed privilege based on the confidentiality obligations it had over documents in its control. The court held that a blanket claim of privilege was not sustainable and ordered the firm to produce a list of documents setting out the relevant documents and the basis for which privilege was claimed. The Rules of Court have the full authority of law. The lawyer has a duty to properly list documents in a List of Documents and should advise the client which are privileged and which are not. Proceedings can be taken under Rule 29(1.2) where there is doubt as to whether a document is privileged or not. If the issue of privilege cannot be resolved, the lawyer may have to consider withdrawing from the retainer. [PCH]
Thermo Tech Technologies Inc. v. Braconnier 2003 BCSC 1019

The court reversed a decision of the Information and Privacy Commissioner ordering that the Legal Services Society reveal information that would indicate that certain clients were represented by Legal Aid. Financial arrangements between solicitor and client, including whether or not Legal Aid is involved, is privileged and must not be disclosed directly or indirectly. The objective of the legislation is to preserve a fundamental right that has always been essential to the administration of justice and it must be applied accordingly. [PCH]
Legal Services Society v. The Information and Privacy Commissioner of BC and Blaine Gaffney (25 September 1996), Vancouver, No. 960275, (BCSC)

An applicant for a development licence requested from the responsible Ministry information about meetings between the Ministry and a government solicitor and a copy of the legal opinion prepared by the solicitor. The court found that if a document meets the test for privilege (made between solicitor and client, intended to be confidential and entailing the seeking or giving of legal advice), then the document is privileged. There is no case for severance of privileged information and the release of other information in the document as provided under the legislation. [PCH]
Minister of Environment, Lands and Parks v. Information and Privacy Commissioner (Cypress Bowl Recreation Ltd.) (12 December 1995), Vancouver, No. A943843, (BCSC)

Archived annotations to rule 3.3-2 Use of confidential information

Where a lawyer acting for a young person in a Young Offenders Act matter receives no confidential information relevant to a subsequent or contemporaneous CFCSA matter, it would not be improper for the lawyer to act for the Superintendent in the CFCSA matter. [PCH]
EC April 1996, item 11

A lawyer may not act simultaneously for a child on a Young Offenders Act matter and the Superintendent of Family and Child Services on the apprehension of the child under the Family and Child Services Act. [PCH]
EC September 1995, item 8

Archived annotations to rule 3.3-2.1 Lawyers’ obligation to claim privilege when faced with requirement to surrender document

Case law

The Privacy Commissioner for Canada has no power to compel the production of privileged documents for the purpose of determining whether they are privileged. An adjudication by the Commissioner, who is an administrative investigator not an adjudicator, would be an infringement of the privilege. [PCH]
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44

Lawyers’ accounting records are not privileged; therefore, a lawyer’s obligations set out in Chapter 5, Rule 14 of the Professional Conduct Handbook do not apply where the CRA demands that the lawyer provide accounting information from a client file. [PCH]
Canada (Minister of National Revenue) v. Cornfield, 2007 FC 436

Archived annotations to rule 3.6-1 Reasonable fees and disbursements

A lawyer who expects to receive a commission from a bank for forwarding funds to the government on behalf of a client who hopes to immigrate to Canada must give a bona fide estimate of the amount of the commission to the client before the precise amount is known, and to advise the client about the precise amount when the lawyer knows the amount. [PCH]
EC May 2011, item 4

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 opposite party’s circumstances in determining the fee.
EC December 2007, item 6

When costs associated with legal services of a contract lawyer are billed to a client as fees for legal services, the amount that may be charged for such services is governed by this Rule. Where a lawyer hires a contract lawyer to do legal research, for example, and incurs expenses in contracting for the work by reviewing the work or otherwise adding value to the work, it is proper to bill the client for that work, provided the charges are reasonable. Such charges must be disclosed to the client and where the charge is for value added to the work, the work should be billed to the client as a fee, not a disbursement. [PCH]
EC February 2006, item 5

A lawyer may add surcharges to disbursements if they reasonably reflect actual costs incurred on behalf of the client, and they are disclosed in the statement of account to the client in accordance with this Rule. [PCH]
EC October 1997, item 5

Where a lawyer receives air mile benefits as a result of work done for a client, a single transaction with a client might fall within a de minimis rule if the air miles accruing to the lawyer as a result of the transaction are of very small financial benefit. However, in cases where a lawyer may receive a substantial benefit because of the size of a single transaction for a client or because the lawyer acts on multiple transactions, it would be necessary for the lawyer to make full disclosure of the benefit and obtain the client's consent to receiving it pursuant to Chapter 9, Rule 8 of the Professional Conduct Handbook. [PCH]
EC February 1997, item 12

Where a law firm hires a lawyer to provide services to one of the firm's clients on a contract basis, it is proper for the law firm to surcharge the client for that lawyer's bill where the firm incurred expenses in contracting for that work or added some value to his work. Whether the contract lawyers cost should be billed as a disbursement or as a fee depends on the terms of the retainer with the client. [PCH]
EC September 1996, item 3

A lawyer on a legal aid retainer will be guilty of professional misconduct if he accepts money from the client on the account. [PCH]
DCD 03-04

A lawyer who prepares an inflated account in an attempt to seek compensation for work he had already done for his clients on a pro bono basis is guilty of professional misconduct. [PCH]
DCD 01-26

Receiving payment from a client while on a legal aid retainer for the same services constitutes professional misconduct. [PCH]
DCD 99-01

Archived annotations to rule 3.6-7 Division of fees and referral fees

Provided a lawyer does not pay for the referrals, a lawyer is not prohibited by Chapter 9, Rule 2 of the Professional Conduct Handbook from acting for a client who comes to him through a divorce centre, which provides materials on the general subject of divorce and provides, without fee, names of lawyers that practice in the area of family law. [PCH]
EC April 2000, item 6

A lawyer who uses the services of a commercial lawyer referral service does not violate Chapter 9, Rule 2 of the Professional Conduct Handbook provided the following criteria are met:

the service does not charge a fee to the client;
the fee the lawyer pays is not for the referral for a particular client, but is a fee for the lawyer's name to be placed or maintained on a roster of available lawyers;
the service maintains a roster of lawyers to whom clients are referred after the service determines the area of law in which the lawyer's services are required;
the fee charged to a lawyer is a flat fee and does not reflect the number of referrals made; and
when the client contacts the referral service, the service provides the client with information about several different lawyers who practice in a given area and leaves it up to the client to determine which lawyer, if any, to contact. [PCH]

EC March 2000, item 7

Where the vendor of a law practice is no longer a member of the Law Society, the payment of compensation by the purchaser is not a division of a client's fee within the meaning of the Rule. [PCH]
EC October 31 1996, item 4

A lawyer acting in a mutual referral relationship with a Credit Union, and who is not paid any fee by the Credit Union for giving advice, is not prohibited from giving free advice to Credit Union members who have received a coupon entitling them to hour of free advice from the lawyer. [PCH]
EC September 1995, item 10

Provided that a lawyer does not breach confidentiality to his client in the course of calculating his wife's share of a law corporation's profits, the lawyer may enter a matrimonial settlement where the wife receives an annual payment equal to 10% of the profits of the law corporation in exchange for her interest in his law practice. [PCH]
EC March 1994, item 3

Archived annotations to rule 3.7-1 Withdrawal from representation

There is no necessary conflict between Chapter 10, Rule 10 of the Professional Conduct Handbook and the Criminal CaseFlow Management Rules, which seem to require the presence of counsel at certain procedural stages of criminal proceedings. It is proper for counsel to enter into an agreement with an accused person to act at trial only, and not to act for the accused in any procedural matters leading up to the trial. Of course, counsel would have an obligation to explain to the client any risks that a limited retainer of this nature might carry for the client. [PCH]
EC November 30, 2000, item 9

It is not inconsistent with Chapter 10, Rule 10 of the Professional Conduct Handbook for a lawyer to provide anonymous drafting assistance to a client. [PCH]
Recommendation 8 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

Failing to provide information to an unrepresented party about the limitations of the retainer does not amount to professional misconduct. [PCH]
DCD 00-16

Archived annotation to rule 3.7-2 Optional withdrawal

Case law

Counsel for the plaintiff filed a trial certificate 18 days before trial, but 5 days later had, pursuant to Rule 16(5), sent a notice of intention to withdraw as solicitor to his client and to the defendant on the basis that he had been unable to obtain instructions from his client. Counsel for the defendant filed a notice of objection to the withdrawal. Counsel was permitted by the Court to withdraw on the first day of trial. [PCH]
Varner v. Vancouver (City), 2009 BCSC 371

Archived annotation to rule 3.7-9 Manner of withdrawal

A lawyer who withheld client files after he and the client settled a fee dispute in relation to those files was found guilty of professional misconduct. [PCH]
DCD 92-5

Archived annotations to Chapter 4 – Marketing of Legal Services

Archived annotations to rule 4.2-5 Content and format of marketing activities

It is not improper for a lawyer who has earned an S.J.D. degree to use the prefix "Dr." in marketing materials.
EC March 2012

A lawyer may refer to his firm in marketing materials as “international” where lawyers for the firm are permitted to practise in jurisdictions in more than one country. [PCH]
EC June 2011, item 6

A lawyer may use a testimonial provided all factual elements in the testimonial meet the standards set out in Chapter 14, Rule 4 of the Professional Conduct Handbook and all statements of opinion are honestly stated. [PCH]
Benchers' Bulletin, No. 4 Winter 2009

A lawyer who sent local realtors advertising flyers featuring evening-gowned young women, offering a free bottle of champagne for every conveyancing referral made to the member's law office by a realtor, and offering the possibility to win prizes including two beautiful hostesses to assist at one open house was found guilty of professional misconduct for steering and for violating the marketing rules. [PCH]
DCD 94-01

The following names are improper, since they suggest that more than a single lawyer comprises the firm:

Smith & Company, Barristers & Solicitors
Smith, Jones and Black, Barristers & Solicitors
Smith and Partners
Smith and Associates

The following names are not improper when the firm is comprised only of one lawyer

Smith and Company, with Bill Smith shown with the words “Barrister & Solicitor”
Smith, Jones and Black, with Bill Smith shown with the words “Barrister & Solicitor”
Smith Law Group [PCH]

EC April 2007, item 6

A law firm name such as BC Forestry Law or BC Forestry Law Services is improper. The use of the term BC in a law firm's practice is misleading because it conveys a false sense of official approval of the lawyer's practice. [PCH]
EC June 2006, item 2

Lawyers cannot use a firm name that is sufficiently similar to another name in use by an existing firm if it may cause confusion to the public. A lawyer cannot use the firm name B Lawyers to practise in Vancouver where another firm B and Company already exists in North Vancouver. It may be reasonably confusing to the public. And, the use of the term lawyers implied there was more than one lawyer at the firm. Since B was a sole practitioner, the use of the name was misleading and improper. [PCH]
EC April 2006, item 3

All elements of a testimonial must meet the requirements of the Rules they must be both true and verifiable. This includes any statements of fact made by former clients giving a testimonial. It is not enough that the former client believes a statement to be true; the statement must be verifiably true as well. Statements by a former client that the lawyer gave great advice or that the lawyer is professional or knowledgeable cannot be verified and therefore are contrary to the Rules. [PCH]
EC March 2006, item 3

Verifiable means that a particular claim or statement made by a lawyer in marketing activity is capable of verification by an independent observer through the objective examination of evidence. It is not necessary that the evidence be available in the marketing activity itself. [PCH]
EC February 2004, item 4

It is misleading for a lawyer to advertise that a law firm is Canada's National Franchise Law Group and to state that the firms making up the group are individually recognized as leaders in franchise law. It may, however, advertise itself as a national franchise law group and to state that the firms making up the group are individually recognized in franchise law. [PCH]
EC May 2000, item 9

In showing qualification to practise in other jurisdictions, it is misleading to say simply that a lawyer is qualified to practise in the United States when such a qualification will be specific to a particular state or states. It is proper for a firm to indicate that a lawyer is qualified to practise in one or more jurisdictions in the United States. [PCH]
EC April 2000, item 10

It is improper for a lawyer to operate a firm named after a particular area of law and bearing no other distinguishing features. [PCH]
EC, October 1998, item 7

It is not improper for a lawyer to advertise by delivering handbills containing marketing information provided the contents of the handbills are in accordance with the Rules. [PCH]
EC September 1995, item 9

Archived annotations to rule 4.2-8 Designation

Non-practising lawyers have an obligation to disclose their status on letterhead or other marketing activity. They must disclose their status and its implications when they are representing a client where failure to do so would mislead someone. This includes an obligation to advise prospective clients if the lawyer is not covered by professional liability insurance for the matter. [PCH]
EC December 2003, item 5

It is not contrary to the Rule for a lawyer to describe a non-lawyer by a designation generally understood to be the equivalent of a designation set out in the Rule, such as paralegal in place of legal assistant, or student-at-law in place of articled student. [PCH]
EC Oct 5 2000, item 13

A non-practising lawyer may not designate himself as a retired member on firm letterhead unless he meets the criteria for that designation set out in Law Society Rule 403 [now Rule 2-4]. [PCH]
EC March 1998, item 9

Archived annotation to rule 4.3-0.1 Preferred areas of practice

Use of any of the terms "expert," "expertise" or "specializing" by a lawyer in marketing materials is not inherently objectionable unless the use of such terms is false or misleading or takes place in a context that suggests the lawyer is claiming a special status or accreditation. [PCH]
Benchers' Bulletin, No. 4 Winter 2009

Before a lawyer would be permitted to use the services of a commercial lawyer referral service, it would be necessary for the lawyer to be able to comply with the Rule relating to preferred areas of practice with respect to any areas of practice in which the lawyer offers services. [PCH]
EC March 2000, item 7

It is proper to incorporate an area of practice into the firm name provided the firm is entitled to list an area as a preferred area of practice (see Law Society Rule 9-1). [PCH]
EC February 1999, item 7

Archived annotation to rule 4.3-1 Specialization

A lawyer obtained a certificate from a university program called the “Professional Specialization Certificate in International Intellectual Property Law.” The Committee determined that the words “professional” and “specialization” in the certificate did not justify their use in marketing materials. Their use in this context may mislead the public into thinking the certificate confers a special status in BC in the practice of international intellectual property law. Reference to the certificate without using those two words would be acceptable. [PCH]
EC April 2007, item 4

Where a lawyer is entitled to state preferred areas of practice, it is reasonable to refer to them as areas of “expertise.” Provided the lawyer does not use other language, which suggests a special status or accreditation, the use of the term “expertise” alone is acceptable. [PCH]
EC January 2007, item 9

Archived annotations to Chapter 5 – Relationship to the Administration of Justice

Archived annotations to rule 5.1-1 Advocacy

In the absence of a valid objection, lawyers have a positive duty to sign court orders that have been granted or agreed to, notwithstanding subsequent instructions of the client to the contrary.
EC March 2012

Archived annotations to rule 5.1-2 Advocacy

A lawyer cited cases from Australia in an arbitration hearing. After evidence and submissions were closed, the lawyer discovered a decision in which the Australian Court of Appeal rejected exactly the same argument he had advanced in the arbitration. He was obliged to bring the relevant case to the attention of the arbitrator before the arbitrator had rendered a decision. It was appropriate to request an opportunity to present argument at the same time. [PCH]
EC April 2002, item 6

It is improper for a lawyer to threaten to commence civil proceedings if the lawyer is unable to make an argument in good faith that the client's claim would be compensable by a court. [PCH]
EC October 1996, item 9

A lawyer who provides drafting assistance to an otherwise self-represented litigant should be allowed to rely on that litigant’s representation of the facts, unless the lawyer has reason to believe the representations are false or materially insufficient. [PCH]
Recommendation 7 of Report of Unbundling of Legal Services Task Force p. 20; approved by Benchers April 2008

A lawyer who permitted her personal financial interest in her client’s business to overcome her professional judgment in attempting to obtain a court order she knew she did not have approval to seek was guilty of professional misconduct.
2014 LSBC 55
2013 BCCA 8
2010 LSBC 29

A lawyer's failure to fully disclose certain information to the court was not a deliberate attempt to mislead; however, he did mislead and his conduct amounted to professional misconduct. [PCH]
2005 LSBC 45

The integrity of a signed document is fundamental to the practice of law and the preservation of the rule of law. An executed document cannot be altered without authority. To alter a document executed on behalf of Her Majesty the Queen in the Right of the Province of BC without authority, and causing it to be filed in the Land Title Office constitutes professional misconduct. [PCH]
2004 LSBC 14

It is professional misconduct for a lawyer to intimidate witnesses from giving evidence, and to seek laying of charges against the witnesses for the purpose of preventing them from coming to Canada to give evidence in court. [PCH]
DCD 01-06

A lawyer, who acted as director, shareholder and solicitor of a VSE-listed company, failed to exercise sufficient care preparing and avoiding inaccuracies in a Statement of Material Facts relating to a securities offering by the company. He was found guilty of professional misconduct. [PCH]
DCD 92-1

Archived annotation to rule 5.1-5 Courtesy

A lawyer who made arrogant, unnecessary and excessively abusive remarks to another lawyer that go beyond mere rudeness or discourtesy was found to be guilty of professional misconduct.
2013 LSBC 25

Archived annotation to rule 5.1-6 Undertakings

When it is necessary to interpret the language of an undertaking, the undertaking is to be construed by reference to the intention of the parties, which is to be deduced from the writing itself and the circumstances in which it was given. When a party argues that a term should be inferred in the undertaking, the term must be “sufficiently certain and notorious and so generally acquiesced in that it might be presumed to form a part of the understanding between the parties” [PCH]
Deutschmann (Guardian ad litem of) v. Fallis, 2010 BCSC 952

Archived annotations to rule 5.1-5 Advocacy

In a letter to the lawyer representing the husband of his client, a lawyer used the words “odalisque” and “courtesan” to refer to a lady who was alleged to be living in an adulterous relationship with the husband of his client. Although the use of such words in this context is unintelligent and inexcusable, it does not amount to professional misconduct. [PCH]
2011 : No. 4 Winter
2011 LSBC 30

A lawyer’s correspondence with an unrepresented litigant in which the lawyer critiqued the litigant’s correspondence and engaged in name-calling and personal criticism amounted to professional misconduct. [PCH]
DD 2009 No. 1 April
2008 LSBC 31

Archived 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

Case law

While it is highly undesirable for counsel to wear the cloak of both advocate and witness, the client has the right to have his counsel testify as a witness. The Professional Conduct Handbook does not extend the prohibition of a lawyer from giving evidence to the lawyer’s partners or associates. In Phoenix v. Metcalfe, (1974) 48 D.L.R. (3d) 631 the Court of Appeal found no impropriety where a client of the partner’s counsel took the stand. [PCH]
Insurance Corp. of British Columbia v. Suska, 2007 BCSC 1838

The plaintiff sought damages against the defendants for wrongful dismissal. A. was counsel for both defendants. He was also a member of the first defendant and held executive positions within it. The plaintiff wanted to examine A. for discovery and brought an application to enjoin A and his firm from representing the defendants. The court noted two ground to the application: first that A was nominated as a witness and second, that A had a membership (and executive interest) in one of the defendants. The court found that the first issue was not relevant because A had not yet given viva voce or affidavit evidence. As for the second issue, membership alone was not enough to restrict legal services. The membership interest must reasonably be expected to affect the lawyer's professional judgment. The plaintiff had not proven that fact and the application was dismissed. [PCH]
Jacks v. Victoria Amateur Swim Club 2003 BCSC 845

The court granted an order restraining a lawyer and his firm from acting for the plaintiffs on the ground that he was both a party and an essential witness. The lawyer and the law firm were defendants by counterclaim in the same action. The defendants alleged that the lawyer and firm had a long history of involvement with the plaintiffs and the defendants and that they were in breach of trust with respect to certain funds held by them on behalf of the defendants. The court should be slow to interfere with a litigants right to choose his own counsel, but since the trial had not commenced, the plaintiffs would not be prejudiced by the removal. [PCH]
Fraresso v. Wanczyk (11 May 1995), Vancouver, No. C944090, (B.C.S.C.)

Archived annotations to Chapter 6 – Relationship to Students, Employees, and Others

Archived annotation to rule 6.1-4 Suspended or disbarred lawyers

Since the updating of a publication is not the practice of law, it is not improper for a lawyer to employ as a volunteer a former lawyer who is suspended from the practice of law because of his failure to satisfy continuing professional development requirements.
EC January 2012

Archived annotations to Chapter 7 – Relationship to the Society and Other Lawyers

Archived annotation to rule 7.1-1 Regulatory compliance

It is professional misconduct for a lawyer to agree to pay a sum of money to a complainant in exchange for the complainant to drop a complaint to the Law Society made against him.
2013 LSBC 09

Archived annotations to rule 7.1-2 Meeting financial obligations

A lawyer's failure to remit funds collected as GST and to report a garnishing order against him under the Income Tax Act constitutes professional misconduct. [PCH]
DCD 03-13, indexed as [2003] LSBC 22. See also DCD 03-17, indexed as [2003] LSBC 27; see also 2004 LSBC 05; see also [2004] LSBC 08; [2004] LSBC 16; [2004] LSBC 15; [2004] LSBC 05

A lawyer's failure to remit social services tax collected on his client's accounts constitutes professional misconduct. [PCH]
DCD 03-14

A lawyer who failed to pay the accounts of another lawyer who provided legal services as an independent contractor, particularly when the client had paid those accounts, constitutes failure to fulfill financial obligations incurred in the course of practice. Such conduct amounts to professional misconduct. It was disgraceful, dishonourable, and unbecoming of a member of the Society. [PCH]
DCD 02-17

A lawyer is guilty of professional misconduct when he fails to pay in a timely fashion a psychiatrist's account for services rendered in relation to a legal aid file. [PCH]
DCD 01-13

Failure to pay a judgment to a client after a fee review, and failing to immediately notify the Law Society of this unsatisfied judgment constitutes professional misconduct. [PCH]
DCD 00-18

Failing to pay the accounts of another lawyer retained by his firm, failing to notify the Law Society of unsatisfied judgments filed against him, and failing to respond to the Law Society about complaints made against him constitutes disgraceful and dishonourable conduct, amounting to professional misconduct. [PCH]
DCD 00-15

Failing to meet professional financial obligations incurred in the course of practice by not paying overdue accounts is conduct unbecoming a member of the Society. [PCH]
DCD 99-11

A lawyer's failure to satisfy a judgment against him and to notify the Law Society constitutes professional misconduct. [PCH]
DCD 99-03

Archived annotations to rule 7.2-1 Courtesy and good faith

Case law

Archived annotation to rule 7.2-2 Courtesy and good faith

A default judgment was set aside and the defendant given leave to file a statement of defense when the plaintiff's lawyer took default judgment without informing the defendants lawyer that she intended to do so. [PCH]
Kara v. Sutherland[1996] Civ. L.D. 547 (B.C.S.C.)

Archived annotation to rule 7.2-3 Courtesy and good faith

Rule 7.2-3 does not contain a specific exemption to permit a lawyer to record the conversation of another lawyer where the lawyer has reasonable grounds to believe the other lawyer will commit or indicate an intention to commit a criminal offence in the way that the old rule, Chapter 11, Rule 14.1 of the Professional Conduct Handbook, did. However, it would be reasonable to imply the exception to the new BC Code rule 7.2-3 in appropriate circumstances and it is unnecessary to amend the rule to describe this particular exception expressly.
EC June 2013, item 6

As the CBA Code prohibits recording conversations with anyone without first informing the other person of the intention to do so, it is improper for a member to tape record a non-member in a situation where the member will subsequently be a witness against the non-member. [PCH]
EC June 1993, item 6

Archived annotation to rule 7.2-4 Communications

A lawyer who made arrogant, unnecessary and excessively abusive remarks to another lawyer that go beyond mere rudeness or discourtesy was found to be guilty of professional misconduct.
2013 LSBC 25

Archived annotation to rule 7.2-5 Communications

Failure to implement practice review recommendations of the Practice Standards Committee, respond to communications, or complete a remedial program constitutes professional misconduct. [PCH]
DCD 00-13

Archived annotations to rule 7.2-6 Communications

The application of Chapter 4, Rule 1.1 of the Professional Conduct Handbook is restricted to situations where a lawyer is acting as lawyer, and does not apply in situations where the lawyer's primary obligation is to act as a manager of other staff. [PCH]
EC December 2009, item 2

A lawyer may communicate directly with a client who has retained another lawyer to provide limited scope legal services, except if all three of the following factors exist:

1. The lawyer has been notified of the limited scope lawyer’s involvement;
2. The communication concerns an issue within the scope of the limited scope lawyer’s involvement; and
3. The limited scope lawyer or his or her client has asked the lawyer to communicate with the limited scope lawyer about the issue in question. [PCH]

Recommendation 9 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

Archived annotation to rule 7.2-8 Communications

A government manager is a witness rather than a party to litigation involving the government in circumstances where she does not have the power to bind the government in the matter, contact with her by the opposing lawyer will not undermine the relationship between the government and its counsel, and she has no personal stake in the litigation. The Committee approved of the following reasoning from Wolfram in Modern Legal Ethics, 1986, at p. 613 regarding whether an employee of a corporate litigant is a party to litigation and approachable only through the lawyer for the entity, or is merely a witness:

Application of the anticontact rule to corporate clients should be guided by the policy objective of the rule. The objective of the anticontact rule is to prevent improvident settlements and similarly major capitulations of legal position on the part of a momentarily uncounseled, but represented, party and to enable the corporations lawyer to maintain an effective lawyer-client relationship with members of management. Thus, in the case of corporate and similar entities, the anticontact rule should prohibit contact with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporations lawyer, or any member of the organization whose own interests are directly at stake in the representation. And generally the anticontact rules should apply if an employee or other nonofficial person affiliated with an organization, no matter how powerless within the organization, is independently represented in the matter. [PCH]

EC September 2000, item 10

Archived annotation to rule 7.2-9 Communications

A lawyer received $300,000 into his trust account from B for investment in bonds by J. He did not represent either B or J and did not have duties as trustee of the funds. He disbursed the funds to J. Later B complained that the bonds he received from J were worthless. The lawyer knew that J had been trying to raise money and that one of his companies was defunct and incapable of issuing bonds. The lawyer had a duty to advise B that he was not protecting his interest in the transaction. Failure to do so was conduct unbecoming. [PCH]
DCD 00-06

Archived annotations to rule 7.2-11 Undertakings and trust conditions

It is improper for a lawyer to seek to impose an undertaking on another lawyer that cannot be honoured. [PCH]
EC November 1997, item 4

Breach of an undertaking is not excused by a mistaken belief by the lawyer that the undertaking has not been triggered. Lawyers have an obligation to scrupulously honour all undertakings. The use of technical arguments to avoid or attempt to avoid the requirements of an undertaking falls short of that requirement. [PCH]
2006 LSBC 5

A lawyer cannot be relieved of an undertaking by relying on a client's confirmation that certain actions have been taken. [PCH]
2004 LSBC 17

Case law

Although it noted that caution should be exercised in implying terms into lawyers' undertakings, the Court of Appeal found that it was appropriate and reasonable for a Law Society hearing panel to imply a term of payment into an undertaking where the undertaking clearly contemplated such payment.. [PCH]
Hammond v. The Law Society of British Columbia 2004 BCCA 560

In an action where the defendant sought a determination that a plaintiff's lawyer was in contempt for breach of the implied obligation not to use documents obtained during discovery for a collateral purpose, the court concluded that the remedy of contempt of court was available against counsel in British Columbia for breach of an implied obligation. [PCH]
Sandbar Construction Limited v. Howon Industries Ltd. (6 July 1998), Victoria, No. 973846, (B.C.S.C.)

Archived annotation to rule 7.8-1 Informing client of errors or omissions

Where a client has a potential claim for negligence against a lawyer, that lawyer and the lawyer’s firm may not continue to act on the matter giving rise to the claim unless the client instructs the lawyer to proceed after receiving independent legal advice at the firm’s expense. [PCH]
Campbell V. Ragona, 2010 BCSC 1339

Archived annotations to Appendix A – Affidavits, Solemn Declarations and Officer Certifications

Archived annotations to paragraph 1 Affidavits and solemn declarations

A lawyer was guilty of professional misconduct in signing an affidavit sworn before her while leaving blank the date in the jurat so that a date could be inserted later. [PCH]
2005 LSBC 39

A lawyer was found to have acted incompetently in the performance of the lawyer's duties when, during matrimonial proceedings, the lawyer allowed a client to swear an affidavit without attaching the exhibits and without the client's reviewing the exhibits prior to swearing. The lawyer subsequently attached the exhibits and filed the affidavits. [PCH]
[2005] LSBC 35

Allowing a client to sign an affidavit on an incomplete financial statement constitutes professional misconduct. [PCH]
DCD 03-09

It is professional misconduct for a lawyer to purport to witness a signature by the wrong person. [PCH]
DCD 01-05

A lawyer who fails to advise the court or opposing counsel of an inaccuracy discovered in an affidavit is guilty of professional misconduct. [PCH]
DCD 99-10

It is professional misconduct to allow a client to swear a false affidavit, including affidavits that do not have the purported documents annexed. [PCH]
DCD 99-07

It is professional misconduct to purport to witness a signature, knowing that the person signing is not the person named in the document and does not possess a power of attorney. [PCH]
DCD 99-06

Archived annotation to paragraph 2 Witnessing the execution of an instrument

Altering a document executed on behalf of the Crown, without authority, and registering the document in the Land Title Office constitutes professional misconduct. [PCH]
2004 LSBC 19

Archived annotations to Appendix C – Real Property Transactions

Archived annotation to paragraph 2 Acting for parties with different interests

A lawyer acted for the purchaser and mortgagee in a real estate transaction. The purchaser flipped the property and entered into an agreement with another purchaser, whom the lawyer also represented. The lawyer breached his fiduciary duty to the second purchaser by failing to disclose each party's interest in the transaction to every other party and obtaining their consent, and in failing to disclose the profit being made in the second conveyance. [PCH]
2004 LSBC 40

Archived annotation to paragraph 7 Unrepresented parties in a real property transaction

When a lawyer is attending only to execution and attestation of a mortgage, the client must be advised of such and of the need to obtain independent legal advice. Failure to do so constitutes professional misconduct. [PCH]
DCD 03-11

[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.