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Chapter 1 out of 14 chapters in the annotated Professional Conduct Handbook
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) 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.
(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.
(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.
(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.
(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.
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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.
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.
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.
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.
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.
Lawyers robe should not bear the words duty counsel or any other markings.
A lawyers intemperate and disrespectful behaviour in court can amount to professional misconduct and conduct unbecoming a member.
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.
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.
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.
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.
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.
The opinion describes situations that the Ethics Committee believes do or do not fall within the rule.
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.
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.
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.
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.
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.
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.
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.
Purporting to serve a writ by fax, knowing it is not proper service, is professional misconduct.
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Chapter 1 out of 14 chapters in the annotated Professional Conduct Handbook