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Chapter 4 out of 14 chapters in the annotated Professional Conduct Handbook

 

CHAPTER 4
AVOIDING QUESTIONABLE CONDUCT, INCLUDING
IMPROPER COMMUNICATIONS


Dealing with unrepresented persons

1. A lawyer acting for a client in a matter in which there is an unrepresented person must advise that client and unrepresented person that the latter's interests are not being protected by the lawyer.

[amended 03/2005]

Annotations


Communication with clients of other lawyers

1.1 A lawyer who has an interest in a matter, or represents a client who has an interest in a matter, must not communicate with any person regarding the matter if, to the lawyer's knowledge, the person is represented by another lawyer, except through or with the consent of the person's lawyer.1

[added 04/1996; amended 12/1999]

Annotations


Threatening criminal or disciplinary proceedings

2. A lawyer must not threaten, or advise a person to threaten, to:

(a) initiate or proceed with a criminal or quasi-criminal charge, or

(b) make a complaint to a regulatory authority,

for the collateral purpose of enforcing the payment of a civil claim or securing any other civil advantage.

[amended 03/2005]

Annotations


Coercion, improper influence or offering compensation to avoid prosecution

3. A lawyer must not wrongfully influence any person to prevent the Crown from proceeding with charges or cause the Crown to withdraw or stay charges in a criminal or quasi-criminal charge against the lawyer's client.

[amended 03/2005]

4. A lawyer must not:

(a) advise a person to give, or

(b) personally give or offer to give,

any valuable consideration to another person in exchange for influencing the Crown not to proceed with a criminal or quasi-criminal charge that has been instituted against a client of the lawyer, unless the lawyer obtains the consent of the Attorney General or his or her agent.

[amended 03/2005]

Annotations


Errors and omissions

5. A lawyer must comply with the terms of each professional liability insurance policy.2

[amended 01/1994]

5.1 If, in respect of a matter in which the lawyer is or was engaged, the lawyer has a reasonable apprehension that an error or omission:

(a) has been made,

(b) is one for which the lawyer is or may be responsible, and

(c) is or may be damaging to the client,

then the lawyer must promptly:

(d) inform the client of the facts of the error or omission, without admitting legal liability, and

(e) recommend that the client obtain independent legal advice.

[added 01/1994]


Dishonesty, crime or fraud of client

6. A lawyer must not engage in any activity that the lawyer knows or ought to know assists in or encourages any dishonesty, crime or fraud.3

[heading and rule amended 03/2005; heading amended 05/2005; rule amended 06/2011]

Annotations


Restricting future representation

7. A lawyer must not participate in offering or making an agreement in which a restriction on any lawyer’s right to practise is part of the settlement of a client lawsuit or other controversy.

[added 10/2006]


Public representations

8. A lawyer must not endorse or lend his or her credibility as a lawyer to the promotion or advertisement of any product, property, investment or service for sale to the public except:

(a) a law practice with which the lawyer is affiliated,

(b) a book or other publication that the lawyer has written or assisted in writing, or

(c) a product designed to assist in the practice of law and with which the lawyer has experience.

[moved from Chapter 14, Rule 6  05/2009]

Annotations

*   *   *

FOOTNOTES:

1. A lawyer who is not otherwise interested in a matter may provide a second opinion to a person with other legal representation, whether or not the lawyer is formally retained to do so.

This rule is subject to a lawyer's right to contact a witness under the conditions set out in Chapter 8.

[added 04/1996; amended 05/1996; 12/1999]

2. Under both the Lawyers' Compulsory Professional Liability Insurance Policy and any excess professional liability insurance policy in effect, a lawyer is contractually required to give written notice to the insurer immediately after the lawyer becomes aware of any actual or alleged error or any circumstances which could reasonably be expected to be the basis of a claim or suit covered under the policy. A lawyer who fails to comply with this contractual requirement risks having coverage denied, assuming personal liability for any damages awarded. Rule 5 imposes an ethical duty to report to the insurer. Imposing such an ethical obligation is necessary, in the public interest, to reduce the risk of coverage being denied.

[amended 01/1994; renumbered 04/1996; amended 03/2010]

3. A lawyer has a duty to be on guard against becoming the tool or dupe of an unscrupulous client or of persons associated with such a client and, in some circumstances, may have a duty to make inquiries. For example, a lawyer should make inquiries of a client who:

(a) seeks the use of the lawyer’s trust account without requiring any substantial legal services from the lawyer in connection with the trust matters, or

(b) promises unrealistic returns on their investment to third parties who have placed money in trust with the lawyer or have been invited to do so.

[renumbered 04/1996; amended 03/2005; 05/2005]


*   *   *

ANNOTATIONS:

Rule 1 - Dealing with unrepresented persons

The minimum obligations of a lawyer acting as witness to a borrower's signature under s. 43 of the Land Title Act and Appendix 1, Rule 2 of the Professional Conduct Handbook are: to identify himself or herself as a lawyer; to verify the identity of the borrower in accordance with s. 43 of the Land Title Act; and to advise the borrower that the lawyer is not protecting the borrowers interests.
EC April 1996, item 10

It is improper for a lawyer to witness a signature as an officer under s. 43 of the Land Title Act where the person signing the document appears to the lawyer through the use of live interactive videoconferencing.
EC March 2000, item 6 and November 30, 2000 item 2

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.
DCD 00-06

Rule 1.1 - Communications with clients of other lawyers

In determining whether a former employee of a corporate litigant is a party to the proceedings or a witness, the fact that the corporation intends to produce that former employee as the person to be examined for discovery on behalf of the corporation requires a lawyer acting for a party adverse in interest to treat the former employee as a party.
EC November 1994, item 8

Where the court has imposed an order on an accused to have no contact with the complainant, that order does not prevent the accused's counsel from contacting the complainant unless the order expressly so provides. However, it would be most unwise for counsel to interview the complainant directly. If it was considered necessary to interview the complainant, a private investigator or another counsel should conduct the interview.
EC April 1995, item 10

Prior to certification of a class proceeding, a lawyer for a defendant may approach someone who is potentially a member of a class, unless that person is personally represented by a lawyer.
EC November 1995, item 4; decided under rescinded Chapter 8, Rule 11

Where Lawyer B has declined to pass on Lawyer's A's settlement proposal to Lawyer B's client unless Lawyer A pays Lawyer B's outstanding account, Lawyer A may contact Lawyer Bs client directly by giving reasonable notice to Lawyer B of his intention to contact the client.
EC April 1996, item 5; decided under rescinded Chapter 8, Rule 11

A lawyer may instruct private investigators to gather evidence relevant to a litigation provided any communications from the investigators to employees of the opposing party are not in the nature of settlement discussions.
EC October 2005, item 7

A lawyer is not obligated to dissuade a client in a civil matter from talking to the other side, and may give a client advice about such a contact. However, the lawyer may not plan and direct such a contact for the purpose of avoiding Rule 1.1.
EC November 1999, item 9

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.

EC September 2000, item 10

Former members of a Board of School Trustees are witnesses rather than parties to litigation involving the Board where there are no facts that indicate that the former trustees have authority to bind the Board in the litigation, have responsibility to implement the advice of the Board's lawyer, or have their own interests at stake in the matter.
EC October 2000, item 12

Rule 1.1 must be read as subject to s. 5 of the Freedom of Information and Protection of Privacy Act. For that reason, it is proper for lawyers to make freedom of information requests directly to a public body even where the public body is represented by a lawyer, and not through the lawyer representing the public body.
EC March 28 2001, item 6

A lawyer who is a personal litigant in a family matter involving his former wife cannot contact her directly if she is represented by a lawyer. It is, however, proper for him to ask his former wife to instruct her lawyer to consent to such communications.

EC November 2006, item 9

It is not improper for a lawyer for a defendant to engage a private investigator to conduct surveillance on a plaintiff that includes conducting conversations with that party concerning matters relevant to that plaintiff’s claim, provided the investigator does not attempt to negotiate with the plaintiff or deal with her in any way concerning the claim.

EC December 2006, 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.

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

The application of Rule 1.1 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.
EC December 2009, item 2  

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.
DCD 93-15

Rule 2 - Threatening criminal or disciplinary proceedings

It is proper for a lawyer to:

  • set out for an opposing party the legislation or rules that govern or may govern that party's conduct, and to take the position that, based on that legislation or rule, it is improper for that party to act in a certain way; or
  • indicate to an opposing party that the lawyer will seek a remedy on behalf of a client from a body that is mandated to give such a remedy.

It is improper for a lawyer to:

  • threaten to lay a charge or make a complaint to a regulatory authority in order to secure a civil advantage for the lawyers client; or
  • make a threat to invoke the jurisdiction of a body that is empowered only to impose a penalty.

EC February 1998, item 11

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.
DCD 99-27

Rules 2, 3 and 4 - Threats, coercion and offers of compensation

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.
EC March 2000, item 9

Rule 6 - Dishonesty, crime or fraud of client

See also annotations in Chapter 8.

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

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.
DCD 03-08

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.

2004 LSBC 14

Rule 8 - Public representations

A link on a lawyer's website to another commercial site is an endorsement of the product advertised on the other site. A disclaimer on the lawyer's website stating that the links are provided for convenience only and the lawyer does not endorse the products of any of the links would be adequate to keep the lawyer from violating the Rule.
EC May 3 2001, item 10

Selling books (e.g., self help books) as part of a lawyer's practice amounts to endorsing them within the meaning of this Rule. There is, however, no prohibition against the lawyer recommending particular books to a client.
EC December 9 2004, item 5

 

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Chapter 4 out of 14 chapters in the annotated Professional Conduct Handbook