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Chapter 3 out of 14 chapters in the annotated Professional Conduct Handbook

 

CHAPTER 3
COMPETENCE, QUALITY OF SERVICE AND RELATIONSHIP TO CLIENTS


Knowledge and skill

1. With respect to each area of law in which a lawyer practises, he or she must acquire and maintain adequate:

(a) knowledge of the substantive law,

(b) knowledge of the practice and procedures1 by which that substantive law can be effectively applied, and

(c) skills to represent the client's interests effectively.

[amended 03/03]

Annotations

2. Before accepting a retainer, a lawyer must be satisfied that he or she has the ability and capacity to deal adequately with any legal matters to be undertaken.

[amended 03/03]

Client capacity

2.1 If a client cannot adequately instruct counsel for any reason,2 the lawyer must maintain a normal client-lawyer relationship with the client, to the extent reasonably possible.

[added 03/03]

2.2 A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only if the lawyer:

(a) reasonably believes that the client cannot adequately instruct counsel,

(b) reasonably believes the appointment or other protective action is necessary to protect the client's interest, and

(c) does not take any action contrary to any instructions given to the lawyer by the client when the client was capable of giving such instructions.3

[added 03/03]

2.3 A lawyer who reasonably believes that a client cannot adequately instruct counsel may, pending appointment of a representative of the client, continue to act for the client to the extent that instructions are implied or as otherwise permitted by law.

[added 03/03]

Lack of capacity

2.4 A lawyer who is prevented from entering into a client-lawyer relationship with a person because of the person's lack of capacity4 may provide reasonable and necessary minimal assistance to the person and disclose confidential information provided the lawyer:

(a) is satisfied that the person cannot adequately instruct counsel generally or about possible protective action the lawyer might take,

(b) makes it clear to anyone who may be misled by the lawyer's involvement that the lawyer does not represent the person,

(c) discloses the minimum amount of information required, and

(d) does not take action contrary to any direction given to the lawyer by the person.5

[added 03/03]

Quality of service

3. A lawyer shall serve each client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which would be expected of a competent lawyer in a similar situation. Without limiting the generality of the foregoing, the quality of service provided by a lawyer may be measured by the extent to which the lawyer:

(a) keeps the client reasonably informed,

(b) answers reasonable requests from the client for information,

(c) responds, when necessary, to the client's telephone calls,

(d) keeps appointments with the client,

(e) having informed the client that something will happen or that some step will be taken by a certain date, does not allow that date to pass without follow-up information or explanation,

(f) answers within a reasonable time a communication that requires a reply,

(g) does the work in hand in a prompt manner so that its value to the client is not diminished or lost,

(h) prepares documents and performs other legal tasks accurately,

(i) maintains office staff and facilities adequate to the lawyer's practice,

(j) informs the client of proposals of settlement, and explains them properly,

(k) discloses all relevant information to the client, and candidly advises the client about the position of a matter, whether such disclosure or advice might reveal neglect or error by the lawyer,

(l) makes a prompt and complete report when the work is finished or, if a final report cannot be made, makes an interim report where one might reasonably be expected,

(m) practises free of any self-induced disability, for example intoxicants or drugs, which would interfere with the member's services to the client.

Annotations


Seeking assistance

4. A lawyer shall be alert to recognize any lack of competence for a particular task and, if consulted in such circumstances, shall either:

(a) decline to act, or

(b) obtain the client's instructions to retain, consult or collaborate with:

(i) a lawyer who is competent in that area of law, or

(ii) an expert in non-legal matters,

as is appropriate in the circumstances.


Promptness

5. A lawyer shall make all reasonable efforts to provide prompt service to each client and, if the lawyer foresees undue delay, shall promptly inform the client.


Duty of lawyer and law firm when a change affects clients

6. When a lawyer leaves a law firm to practise alone or to join another law firm, the departing lawyer and the law firm have a duty to inform all clients for whom the departing lawyer is the responsible lawyer in a legal matter that the clients have a right to choose who will continue to represent them. The same duty may arise when a firm is winding up or dividing into smaller units.

[added 04/2010]

7. This duty does not arise if the lawyers affected by the changes, acting reasonably, conclude that the circumstances make it obvious that a client will continue as a client of a particular lawyer or law firm.

[added 04/2010]

8. When this Chapter requires a notification to clients, each client must receive a letter as soon as practicable after the effective date of the changes is determined, informing the client of the right to choose his or her lawyer.

[added 04/2010]

9. It is preferable that this letter be sent jointly by the firm and any lawyers affected by the changes. However, in the absence of a joint announcement, the firm or any lawyers affected by the changes may send letters in substantially the form set out in Appendix 4.

[added 04/2010]

10. Lawyers whose clients are affected by changes in a law firm have a continuing obligation to protect client information and property, and must minimize any adverse effect on the interests of clients.6

[added 04/2010]

11. The right of a client to be informed of changes to a law firm and to choose his or her lawyer cannot be curtailed by any contractual or other arrangement.

[added 04/2010]

12. With respect to communication other than that required by these Rules, lawyers should be mindful of the common law restrictions upon uses of proprietary information, and interference with contractual and professional relations between the law firm and its clients.

[added 04/2010]

Annotations


Pro bono

13. A lawyer’s professional responsibility to provide quality legal services to all clients is not affected by the limited ability of some clients to pay for those services, or the fact that the services are provided wholly or partly on a pro bono basis.7

[added 06/2010]


FOOTNOTES:

1. For a discussion of the correct procedure in swearing an affidavit or taking a solemn declaration, see Appendix 1 to this Handbook.

2. Such as, but not limited to, minority or mental disability.

[added 03/03]

3. A lawyer may have special duties of confidentiality to a client lacking capacity. See Chapter 5, Rule 16.

[added 03/03]

4. A lawyer may not form a client-lawyer relationship with a person who has never been the lawyer's client and who lacks the capacity to instruct the lawyer, except if the lawyer is appointed to act by a court or tribunal, by operation of statute or in a proceeding in which some aspect of the client's mental capacity is in issue. However, a lawyer may act for a person of marginal capacity who is capable of giving instructions on some matters but not others.

[added 03/03]

5. For example, such assistance might consist of appearing at a scheduled court appearance to protect the person's interests or advising the Public Guardian and Trustee, family members or others of the person's need for assistance. Lawyers must act with great care in these situations since the disclosure of confidential information could open a lawyer to a claim and an accusation of acting unlawfully.

[added 03/03]

6. This obligation generally includes an obligation to ensure that files transferred to a new lawyer or law firm are properly transitioned, including, when necessary, describing the status of the file and noting any unfulfilled undertakings and other outstanding commitments.

[added 04/2010]

7. The provision of pro bono legal services has been a long tradition of the legal profession, which is consistent with Chapter 1, Canon 3(9). It is up to each lawyer to decide how much pro bono services he or she can provide. 

[added 06/2010]


*   *   *

ANNOTATIONS:

Rule 1 - Knowledge and skill

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.
EC November 1997, item 6

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.
DCD 99-08

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.
DCD 00-01

Rule 3 - Quality of Service

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.
DCD 94-8

It is proper for a lawyer to follow instructions from an insurer regarding the conduct of litigation, provided those instructions do not preclude the lawyer from undertaking work or incurring expense that the lawyer reasonably believes is necessary to defend the claim against the insured.
EC April 1999, item 7

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. 
Recommendation 13 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

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

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.
DCD 01-24

The duty for all members to respond promptly is a duty that is owed not only to fellow members and to the Law Society, but also to lay persons with whom the member may be dealing with in the course of acting for a client.
2005 LSBC 27

Rule 11 contemplates clients with active matters and does not refer to clients whose matters are completed.
EC June 2009, item 6

Rule 12 - Duty on termination of employment

Restrictive covenants, including those with geographic restrictions, that may affect a lawyer's ability to act for prospective clients are not prohibited by the Professional Conduct Handbook, but in some cases they may be unenforceable at law.
EC, March, 1998, item 12

Note: Prospective clients includes existing clients on new matters.
EC May 1999, item 7

 


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Chapter 3 out of 14 chapters in the annotated Professional Conduct Handbook