Ethics Committee opinions
Whether a lawyer may pay a commercial lawyer referral service for listing
Chapter 9, Rule 2 of the Professional Conduct Handbook
(Ethics Committee: March, 2000)
The Unauthorized Practice Committee has concluded that commercial lawyer referral services that do not charge a fee to the client are not engaging in the unauthorized practice of law. The Ethics Committee accordingly is of the view that, unless lawyers are prohibited from making use of commercial lawyer referral services by reason of Chapter 9, Rule 2 of the Professional Conduct Handbook, they may participate in commercial lawyer referral services in some circumstances.
A lawyer who uses the services of a commercial lawyer referral service does not violate Rule 2, provided:
- The service does not charge a fee to the client;
- The fee the lawyer pays is not for the referral for a particular client, but is a fee for the lawyer's name to be placed or maintained on a roster of available lawyers;
- The service maintains a roster of lawyers to whom clients are referred after the service determines the area of law in which the lawyer's services are required;
- The fee charged to a lawyer is a flat fee and does not reflect the number of referrals made; and
- When the client contacts the referral service, the service provides the client with information about several different lawyers who practise in a given area and leaves it up to the client to determine which lawyer, if any, to contact.
It is the Committee's view that, before a lawyer would be permitted to use the services of a commercial lawyer referral service, it is necessary for the lawyer to be able to comply with the rule relating to preferred areas of practice in Chapter 14, Rule 16 of the Professional Conduct Handbook.
Whether lawyer can present a divorce petition jointly on behalf of two spouses
Chapter 6 of the Professional Conduct Handbook
(Ethics Committee: March, 2000)
The Committee originally considered this issue in April, 1998 but adjourned it to give CBA family law sections throughout the province the opportunity to provide comment. The Committee considered a number of letters from lawyers concerning the issue.
The Committee notes that Section 8 of the Divorce Act and Rule 60(11) of the Supreme Court Rules contemplate that a divorce may be granted to both spouses in some circumstances. In 1989 the Committee published an opinion in the Benchers' Bulletin that lawyers should not act for both spouses in bringing a joint petition for divorce.
After reconsidering the issue, the Ethics Committee remains of the view that, because of the potential for disagreement between the parties to emerge in family law matters, lawyers should not act for both spouses in bringing a joint petition for divorce even after both spouses have received independent legal advice.
Whether a lawyer may act for more than one party in preparing a representation agreement
Chapter 6, Rules 1, 2 and 3 of the Professional Conduct Handbook
(Ethics Committee: October, 2000)
At the request of a lawyer, the Committee considered whether it is proper for a lawyer to act for more than one of an "adult," a "representative" and a "monitor" in the preparation of a representation agreement under the Representation Agreement Act.
The Committee notes that, according to the principles set out in Chapter 6, Rules 1, 2 and 3 of the Professional Conduct Handbook, lawyers have a duty to give undivided loyalty to every client. In light of that principle, the Committee is of the view that a lawyer, if he or she proposes to act for both an adult and representative jointly, must be extremely vigilant to ensure not to act in a conflict. The responsibilities placed on representatives by the Act are onerous, and lawyers must not allow a joint retainer to inhibit them from highlighting the seriousness of those responsibilities.
Some situations in which conflicts are a risk if the lawyer acts for both the adult and representative occur when the adult does not have full capacity, when there is a concern that undue influence might be exerted, or when there is disagreement about any aspect of the proposed agreement, including the scope of the representation, the remuneration of the representative or the responsibility for the lawyer's fees. Other circumstances may also give rise to conflicts, including conflicts that do not emerge until after a lawyer has begun work on the agreement.
Because of the serious obligations imposed on monitors by the legislation, and because it is usually not necessary to have a monitor in order to complete an agreement, it is the Committee's view that lawyers should not represent both an adult and the monitor of the agreement the adult proposes to sign. The Committee is also of the opinion that the interests of a representative and a monitor to the same agreement are sufficiently divergent that a lawyer cannot represent them jointly.
A lawyer acting for more than one party in the preparation of a representation agreement must comply with the requirements for joint representation in Chapter 6, Rules 4, 5 and 6 of the Professional Conduct Handbook. In determining whether there is a conflict that may prevent the lawyer from acting, it was the Committee's view that a lawyer may wish to meet with the parties separately.