From the Ethics Committee
- Lawyers as beneficiaries
- “Expert,” “expertise” and “specializing”
Lawyers as beneficiaries
A column in the Vancouver Sun (October 13, 2009 by Ian Mulgrew) raises a question about the propriety of a lawyer receiving a bequest from a client in a will prepared by the lawyer for the client.
Chapter 7, Rule 1 of the Professional Conduct Handbook prevents a lawyer in British Columbia from acting where the lawyer has an interest in a matter. In the Committee’s view, Rule 1 prohibits a lawyer from drafting a will with such a bequest. Rule 1 states:
1. Except as otherwise permitted by the Handbook, a lawyer must not perform any legal services for a client if:
(a) the lawyer has a direct or indirect financial interest in the subject matter of the legal services, or
(b) anyone, including a relative, partner, employer, employee, business associate or friend of the lawyer, has a direct or indirect financial interest that would reasonably be expected to affect the lawyer’s professional judgement.
“Expert,” “expertise” and “specializing”
The Ethics Committee reminds lawyers that Chapter 14, Rule 18 of the Professional Conduct Handbook prohibits the use by lawyers of the term “specialist.” Rule 18 states:
18. Unless otherwise authorized by the Legal Profession Act, the Rules, or this Handbook or by the Benchers, a lawyer must:
(a) not use the title “specialist” or any similar designation suggesting a recognized special status or accreditation in any marketing activity, and
(b) take all reasonable steps to discourage use, in relation to the lawyer by another person, of the title “specialist” or any similar designation suggesting a recognized special status or accreditation in any marketing activity.
The Ethics Committee recently considered whether there is anything inherently improper in the use by lawyers of the terms “expert,” “expertise” and “specializing” in marketing materials. In January 1995 the Ethics Committee gave an opinion that use of the word “expert” is equivalent to using “specialist” and was improper. That opinion is now withdrawn.
It was the Committee’s view that the use of any of the terms “expert,” “expertise” or “specializing” by a lawyer in marketing materials is not inherently objectionable unless the use of such terms is false or misleading or takes place in a context that suggests the lawyer is claiming a special status or accreditation.
Although any express reference to testimonials has now been removed from Chapter 14 of the Professional Conduct Handbook, lawyers are still bound by the obligations of Chapter 14, Rule 4 to ensure that marketing materials meet the criteria set out in that rule: Marketing activity undertaken by a lawyer must not be false, inaccurate, unverifiable, misleading or contrary to the best interests of the public.
Where a lawyer uses testimonials in marketing materials, all factual elements referred to in the materials must meet the standards set out in Rule 4, including any facts contained in the testimonial itself. However, it was the Committee’s view that it is unnecessary for statements of opinion to meet the criteria of Rule 4, provided the opinion is honestly stated.