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Chapter 11 out of 14 chapters in the annotated Professional Conduct Handbook
RESPONSIBILITY TO OTHER LAWYERS
5. A lawyer must be punctual in fulfilling all professional commitments.
6. A lawyer must reply reasonably promptly to any communication from another lawyer that requires a response.
7. A lawyer must
7.1 Undertakings and trust conditions should be
8. Except in the most unusual and unforeseen circumstances, which the lawyer must justify, a lawyer who withdraws or authorizes the withdrawal of funds from a trust account by cheque undertakes that the cheque
[amended 09/95; 06/99; footnote added 09/07]
8.1 If a lawyer acting for a purchaser of real property accepts the purchase money in trust and receives a registrable conveyance from the vendor in favour of the purchaser, then the lawyer is deemed to have undertaken to pay the purchase money to the vendor on completion of registration.
9. If a lawyer gives an undertaking conditional on something else happening or in respect of which the lawyer does not intend to accept personal responsibility, this must be stated clearly in the undertaking itself.
10. A lawyer must not impose on other lawyers impossible, impractical or manifestly unfair conditions of trust.
11. If a lawyer is unable or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition must be immediately returned to the person imposing the trust condition unless its terms can be forthwith amended in writing on a mutually agreeable basis.
12. A lawyer who knows that another lawyer has been consulted in a matter must not proceed by default in the matter without inquiry and reasonable notice.
13. A lawyer must avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges of other lawyers, but should be prepared, when requested, to advise and represent a client in a complaint involving another lawyer.
14. Even if it is lawful to do so, a lawyer must not:
the statements of another lawyer with whom the lawyer is having a conversation, without first informing the other lawyer of the intention to do so.
14.1 Rule 14 does not apply if the lawyer has reasonable grounds to believe that, during the conversation, the other lawyer will commit or indicate an intention to commit a criminal offence.
15. A lawyer must not threaten to report another lawyer's past illegal or unprofessional conduct to the Law Society.2
22. A lawyer or a law firm must not require, as a condition of employment of an articled student, agreement to a restrictive covenant limiting either in time or distance the freedom of the articled student to engage in practice upon the termination of such employment.
1. Unless funds are to be paid under an agreement that specifically requires another form of payment or payment by another person, a lawyer must not refuse to accept another lawyer’s uncertified cheque for the funds. It is not improper for a lawyer, at his or her own expense, to have another lawyer's cheque certified.
2. The duty to report another lawyer to the Law Society under Chapter 13 must be clearly distinguished from the situation where a lawyer threatens to report another lawyer. It is proper for a lawyer to forewarn another lawyer, where an illegality or a violation of a standard of professional responsibility contained in this Handbook has not yet occurred, that the other lawyer will be reported to the Law Society if the illegal or unprofessional conduct occurs. It is improper, however, for a lawyer to threaten to report another lawyer for the latter's past illegal or unprofessional conduct. There is a risk that the threatening lawyer will use the threat, or the threatened lawyer will perceive the threat being made, for the purpose of gaining an advantage for the threatening lawyer or his or her client. A lawyer must not use the Law Society's disciplinary machinery to coerce another lawyer into a course of conduct.
It is proper for a lawyer who reasonably believes that another lawyer has committed an illegality or unprofessional conduct, to draw to the latter's attention the specific provision of this Handbook or other authority proscribing such conduct.
[renumbered 09/94; 09/07]
Non-practising lawyers who provide services to clients (without fee) have the same obligations as practising lawyers with respect to representing clients and generally carrying on practice. This includes the obligation to reply to communications from other lawyers, to provide competent services, and to be reasonably accessible to clients and others who contact the lawyer in connection with the representation.
Where a debtor sends a cheque to a creditor's lawyer for a lower amount than the creditor claims, advising the lawyer that the cashing of the cheque by the creditor relieves the debtor of an obligation to pay a higher amount, it is sharp practice for the lawyer to cash the cheque and then accept instructions to pursue the additional amount.
Lawyers who receive funds from clients to pay disbursements owed to a creditor for the client's case, in the absence of an agreement to the contrary, must use the funds to pay the creditor forthwith. A failure to do so amounts to unprofessional conduct.
A lawyer’s client, when unrepresented, agreed to receive documents relevant to an inquest being conducted with respect to the death of her sister on certain conditions. The lawyer acting for her subsequently cannot act inconsistently with the conditions agreed to by his client, although he is free to take legal action on her behalf to attempt to secure access to the relevant documents on more favourable conditions.
A lawyer who routinely declines to accept the standard undertakings contained in client contracts that have been negotiated prior to the lawyer's involvement in the matter places each client at risk of losing the benefits of the client's contract and may be practising negligently.
Where a lawyer acquires a document from a party adverse in interest that the lawyer has reason to believe was not genuine and that could be used for a fraudulent purpose if it is returned, it would be improper for the lawyer to release the document unless the release is pursuant to a court order or an agreement between the parties that ensures the document is not used for a fraudulent purpose.
A lawyer who sends a blacklined document to another lawyer, in the absence of language to the contrary, neither undertakes nor represents that the blacklined document accurately shows the changes made to it A lawyer in such circumstances simply represents that he or she believes, in good faith, that the blacklined version correctly describes proposed changes to the document.
A lawyer cannot be relieved of an undertaking by relying on a client's confirmation that certain actions have been taken.
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.
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.
A lawyer gave an undertaking to discharge a mortgage in 1997, but the undertaking was silent as to the time by which it had to be discharged. A complaint was made to the Law Society in 2001 because the mortgage had not been discharged. The Law Society found the lawyer guilty of professional misconduct for having failed to discharge the undertaking, and the Court of Appeal agreed with that decision. His cavalier approach to the fulfillment of undertaking provisions had no place in the practice of law. [see also Law Soc. Rule 3-89 re lawyers' obligation to report failure to cancel mortgage]
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..
The holdback provisions of the Builders Lien Act do not take precedence over an undertaking unless the undertaking expressly contemplates that they do so. An undertaking takes precedence over a common law right to setoff.
It is proper for a lawyer to issue a cheque to another lawyer on a pre-arranged undertaking that the cheque will not be cashed until confirmation is provided that the cheque can be negotiated.
In order to discourage the fraudulent use of trust cheques it is proper to mark them as:
It is improper for a lawyer to seek to impose an undertaking on another lawyer that cannot be honoured.
If there is no agreement between the parties that a lawyer will provide a certified trust cheque in payment of an amount due, it is proper for a lawyer to impose an undertaking on another lawyer that it be certified. A lawyer may have sound business reasons for seeking the certification of a trust cheque, and it may be simpler for the lawyer drawing the cheque to attend to its certification than for the lawyer receiving it to do so. Although the lawyer on whom the undertaking is imposed may properly refuse it if there is no contractual requirement to accept it, it is not unreasonable or otherwise improper for a lawyer acting in good faith to attempt to impose such an undertaking. [See also Footnote 1 of Chapter 11 of the Professional Conduct Handbook effective 09/07]
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.
A lawyer was found guilty of professional misconduct in making unfounded, but serious, allegations about the conduct of another lawyer.
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.
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Chapter 11 out of 14 chapters in the annotated Professional Conduct Handbook