[Table of Contents] [previous chapter] [next chapter]
Chapter 8 out of 14 chapters in the annotated Professional Conduct Handbook



Prohibited conduct

1. A lawyer must not:

(a) abuse the process of a court or tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party,

(b) knowingly assist the client to do anything or acquiesce in the client doing anything dishonest or dishonourable,

(c) appear before a judicial officer when the lawyer, the lawyer's associates or the client have business or personal relationships with the officer that may reasonably be perceived to affect the officer's impartiality,

(d) attempt or acquiesce in anyone else attempting, directly or indirectly, to influence the decision or actions of a court or tribunal or any of its officials by any means except open persuasion as an advocate,

(e) knowingly assert something for which there is no reasonable basis in evidence, or the admissibility of which must first be established,

(e.1) make suggestions to a witness recklessly or that the lawyer knows to be false,1

(f) deliberately refrain from informing the court or tribunal of any pertinent authority directly on point that has not been mentioned by an opponent,

(g) dissuade a material witness from giving evidence, or advise such a witness to be absent,

(h) knowingly permit a party or a witness to be presented in a false way, or to impersonate another person, or

(i) appear before a court or tribunal while impaired by alcohol or a drug.

[amended 09/06; 09/07]


Offering to give false testimony

2. When a client advises a lawyer that the client intends to offer false testimony in a proceeding, the lawyer must explain to the client the lawyer's professional duty to withdraw if the client insists on offering, or in fact does offer, false testimony.

[amended 09/06]

3. When a client who has been counselled in accordance with Rule 2 advises the lawyer that the client intends to offer false testimony in a proceeding, the lawyer must withdraw from representing the client in that matter, in accordance with Chapter 10.

[amended 09/06]

4. A lawyer who withdraws under Rule 3 must not disclose to the court or tribunal, or to any other person, the fact that the withdrawal was occasioned by the client's insistence on offering false testimony.

[amended 09/06]

5. A lawyer must not call as a witness in a proceeding a person who has advised the lawyer that the witness intends to offer false testimony.

[amended 09/06]

Inconsistent statements or testimony

6. Mere inconsistency in a client's or witness's statements or testimony, or between two proffered defences, is insufficient to support the conclusion that the person will offer or has offered false testimony. However, when such inconsistency exists, the lawyer must explore the inconsistency with the client or witness at the first available opportunity. If, based on that enquiry, the lawyer is certain that the client or witness intends to offer false testimony, the lawyer must comply with Rules 2 to 5. Otherwise, the lawyer is entitled to proceed, leaving it to the court or tribunal to assess the truth or otherwise of the client's or witness's statements or testimony.

[amended 09/06]

Duty to withdraw

7. When a client wishes to adopt a course prohibited by this Chapter, the lawyer must do everything reasonably possible to prevent it.

[amended 09/06]

8. If, despite the lawyer's actions under Rule 7, the client does anything prohibited under this Chapter, the lawyer must withdraw from representing the client, subject to Rules 2 to 5 and in accordance with Chapter 10.

[amended 09/06]

The lawyer as witness

9. A lawyer who gives viva voce or affidavit evidence in a proceeding must not continue to act as counsel in that proceeding unless

(a) the evidence relates to a purely formal or uncontroverted matter, or

(b) it is necessary in the interests of justice.

[amended 09/06]

10. A lawyer who was a witness in proceedings must not appear as advocate in any appeal from the decision in those proceedings, when the lawyer's evidence may reasonably be expected to be an issue on the appeal.

[amended 09/06]


Interviewing witnesses

11. [Rescinded 05/96]

12. There is no property in a witness, and a lawyer may properly seek information from any potential witness, whether or not the witness is under subpoena.

This Rule is subject to Rules 12.1 to 17 when the lawyer has an interest in the proceeding or represents a client who has an interest in the proceeding.

[amended 05/96; 12/99]

12.1 If a lawyer knows that a potential witness is represented in the proceeding by another lawyer, the lawyer must:

(a) notify the other lawyer before contacting the potential witness, and

(b) if the potential witness is a party to the proceeding, make no contact except through or with the consent of the other lawyer.

[added 05/96]

12.2 A lawyer must disclose to a potential witness the lawyer's interest in the proceeding before seeking any information from him or her.

[added 05/96]

12.3 In contacting a potential witness, a lawyer must take care not to:

(a) subvert or suppress any evidence, or

(b) procure the witness to stay out of the way.

[added 05/96]

13. A lawyer must not advise a person, who is a potential witness on behalf of the lawyer's client, that the person must not communicate with an opposing party or with that party's counsel.

[amended 12/99]

Annotations - Rule 12.1
Annotations - Rule 13

Contacting an opponent's expert

14. A lawyer acting for one party must not question an opposing party's expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party's expert, the lawyer must notify the opposing party's counsel of the lawyer's intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party's expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer's contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, "lawyer" includes a lawyer's agent.


Duties of prosecutor

18. When engaged as a prosecutor the lawyer's prime duty is not to seek a conviction, but to see that justice is done. The prosecutor exercises a public function involving much discretion and power, and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counsel or to an unrepresented accused of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would affect the punishment of the accused.2

[amended 03/04]

Judicial interim release

19. A lawyer must not act as surety for, deposit the lawyer's own money or other valuable security for or act in a supervisory capacity to an accused person for whom the lawyer acts.3

[amended 12/07]

Representation of an accused on guilty plea

20. A lawyer may represent an accused on a guilty plea provided that the accused:

(a) admits to all the factual elements of the offence, and

(b) is competent to instruct the lawyer.

Role in without notice proceedings

21. In without notice proceedings, a lawyer must inform the court or tribunal of all material facts known to the lawyer that will enable the court or tribunal to make an informed decision, even if the facts are adverse to the interests of the lawyer's client.

[heading and rule amended 09/06]

Former judge or master

22. A lawyer who has served as a judge or master in any court must not use any judicial title or otherwise allude to the lawyer's former status in addressing any court as counsel.

[added effective 05/98]

Public representations

23. A lawyer must not:

(a) comment publicly on the validity, worth or probable outcome of a legal proceeding in which the lawyer acts, or

(b) state publicly that the lawyer speaks on behalf of the legal profession unless the lawyer has been expressly authorized to state the official position of the legal profession.

[moved from Chapter 14, Rule 6  05/09]

24. Before making a public statement concerning a client’s affairs, a lawyer must be satisfied that any communication is in the best interests of the client and made with the client’s consent.4

[moved from Chapter 14, Rule 6.1  05/09]

*   *   *


1. The Supreme Court of Canada in R. v. Lyttle, [2004] 1 S.C.R. 193 reviewed the question of what foundation counsel must have before cross-examining a witness on an issue and concluded that a lawyer may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition.

[added 09/07]

2. In view of the policy, legal and constitutional considerations that favour permitting prosecutors to function independently, this rule is not intended to interfere with the proper exercise of a prosecutor's discretion. See Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372 and other cases.

[added 03/04; renumbered 09/07]

3. This rule does not apply when the accused is in a family relationship with the lawyer and the accused is represented by the lawyer’s partner or associate.

[added 12/07]

4. The lawyer owes a duty to the client to be qualified to represent the client effectively before the public and not to permit any personal interest or other cause to conflict with the client’s interests.

[moved from Chapter 14  05/09]

*   *   *


Rule 1 - Prohibited conduct

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.
DCD 92-1

Where the issue of liability has been settled and where the issue of quantum is to be argued, and where the plaintiff in the matter dies, a lawyer acting for the plaintiff has a duty to inform both the clerk of the court and opposing counsel of the plaintiff's death.
EC March 1993, item 7

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

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

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

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.
EC October 1996, item 9

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.
EC April 2002, item 6

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. 
Recommendation 7 of Report of Unbundling of Legal Services Task Force p. 20; approved by Benchers April 2008

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.
DCD 01-06

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.
2004 LSBC 14

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.
2005 LSBC 45

Rule 9 - Lawyer as witness

A lawyer who is a shareholder in a company is not prohibited from appearing on the company's behalf without fee and as a shareholder, not as a lawyer. In such circumstances, the lawyer is not bound by Rule 9.
EC September 1997, item 9

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.
EC September 30, 2004, item 6

Case Law

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.
Fraresso v. Wanczyk (11 May 1995), Vancouver, No. C944090, (B.C.S.C.)

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.
Jacks v. Victoria Amateur Swim Club 2003 BCSC 845

Rule 12.1 - Witness represented by lawyer

A lawyer represented two plaintiffs (A and B) in a motor vehicle accident case. The minor plaintiff (B) had a guardian ad litem (C) who was B's father and A's husband. Defence counsel wanted to contact C directly to discuss A's case, but not the case in which C acted as guardian ad litem for his daughter. The litigation arose from a single set of facts, contained in a single action. Defence counsel must therefore comply with Rule 12.1 in order to contact a co-plaintiff, that is, through or with the consent of the party's lawyer.
EC September 2003, item 7

Rule 13 - Communicating with opposing party

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

Rules 14, 15 and 16 - Contacting an opponents expert

A lawyer must give opposing counsel notice of each proposed contact with experts.
EC March 2002, item 9



[Table of Contents] [previous chapter] [next chapter]
Chapter 8 out of 14 chapters in the annotated Professional Conduct Handbook