Practice Advisors FAQs

Refer to section 3.3 of the BC Code. The duty of confidentiality is wider than the common law concept of privilege (rule 3.3-1, commentary [2]); it continues indefinitely even if others share the same knowledge.

The exceptions to the ethical duty of confidentiality currently set out in the Code include:

• authorization by the client, as required by the court, or to deliver information to the Law Society (rule 3.3-1);
• as necessary until a representative is appointed to protect a client from imminent harm when they are lacking in capacity (rules 3.2-9, commentary [5] and 3.3-1, commentary [10]);
• to prevent future harm for risk of death or serious bodily harm (rule 3.3-3);
• to defend against criminal or civil liability, allegations of negligence involving a client’s affairs, or alleged professional misconduct (rule 3.3-4);
• to collect fees (rule 3.3-5);
• to secure legal or ethical advice from another lawyer about your proposed conduct (rule 3.3-6); and
• to the extent reasonably necessary to detect and resolve conflicts arising from a change of employment or firm re-composition, so long as solicitor-client privilege is not offended (rule 3.3-7).

In all cases, the lawyer should only disclose as much confidential information as is necessary. Also, a lawyer who is required under federal or provincial legislation to produce a document that is privileged must, unless the client waives privilege, claim solicitor-client privilege (rule 3.3-2.1).

If you are subpoenaed to give evidence about a former client, where no allegations are made about you as the lawyer (if allegations are made, you should report to the Lawyers Indemnity Fund), the proper conduct is generally as follows:

• Inform the former client’s current counsel (or the former client if unrepresented) that you have been subpoenaed and will attend court with the file. You should also inform the court that you are claiming privilege on behalf of the former client (unless the former client’s current counsel or the former client consents to you providing the information), and testify only if ordered to do so.
• Usually, the issue of privilege and waiver is a matter of argument between the former client’s current counsel and the other party or the Crown, as the case may be, and not for the lawyer who has been subpoenaed.
• If you are concerned that arguments made by both counsel could result in a court order that conflicts with your professional obligations (or there are other unique circumstances), you should attend court with your own counsel.
• Upon the judge making an order that privilege has been waived, you are released from the obligation of confidentiality, but you must not voluntarily disclose confidential information except on the witness stand and must not disclose more than is necessary.
• If you are unclear on how the waiver of privilege extends, you should request clarification of the court order.

Note that the Provincial Court issued a Practice Directive effective May 17, 2021 regarding subpoenas requiring opposing counsel to give evidence in a proceeding.

The exceptions to the duty of confidentiality can be difficult to discern at times and a call to a Practice Advisor is recommended in most situations where one is contemplated.

Refer to the definition of “conflict of interest” in rule 1.1-1 and section 3.4 (Conflicts) of the BC Code. See also the Model Conflict of Interest Checklist. There are a wide variety of topics covered in the conflicts portion of the Code, including the duty to avoid conflicts of interest, joint retainers, conflicts arising from transfer between law firms (see also “Ethical considerations when a lawyer leaves a firm”, Practice, Summer 2017 Benchers’ Bulletin), conflicts with clients and doing business with clients, how to give independent legal advice under the Code, and space sharing arrangements.

Refer to section 3.7 and rule 3.6-2, commentary [2] of the BC Code. The basic rule for withdrawal is found in rule 3.7-1, which in essence says a lawyer can only withdraw for good cause and on reasonable notice. Unless your situation fits one of the exceptions found in rules 3.7-2 and 3.7-7, you must always give reasonable notice to your client before withdrawing. Withdrawal for non-payment of fees is no exception to the reasonable notice requirement (rule 3.7-3). If you are in process with a transaction or have an upcoming proceeding set on behalf of a client, contact a Practice Advisor to determine whether there is sufficient time for you to withdraw in the circumstance. The manner of withdrawal is dealt with in rules 3.7-8 to 3.7-10.

There are additional aspects to consider when withdrawing in a criminal case (rules 3.7-3, commentary [2] and [3], and 3.7-4 to 3.7-6), and where a contingency agreement is in place (rule 3.6-2, commentary [2]).

For information on the ownership of the file contents, see the article “Ownership of Documents in a Client’s File.” If you are withdrawing from a file because you are changing firms, refer to rule 3.7-1, commentary [4] to [10] and the information available at Lawyer leaving law firm.

For guidance regarding clients with diminished capacity, refer to rules 3.2-9 and 3.3-1, commentary [10] of the BC Code. When a client’s ability to make decisions is impaired because they have a mental disability (or is a minor), the lawyer must as far as reasonably possible maintain a normal lawyer and client relationship. Although a doctor’s assessment may assist in determining capacity, ultimately it is a legal test and you must make the decision whether the client has capacity. The key is whether the client has the ability to understand the information relative to the decision that has to be made, and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision (rule 3.2-9, commentary [1]).

If you decide to engage a doctor or other professional to assist in making the determination, it is crucial that the professional understand the nature of the decision to be made by the client. Often the client has the capacity to make certain decisions, even though the doctor’s opinion may be that they generally have an impaired mental state. It can be worthwhile to find out if the client has better times of day or conditions (e.g., before or after medication) that can assist with their mental functioning when a decision needs to be made.

Further information is available in Acting for a client with dementia, (Practice Watch, Spring 2015 Benchers’ Bulletin) and the BC Law Institute Report on Common-Law Tests for Capacity.

Read Law Society Rules 3-98 to 3-110. See also the extensive information available at Client ID and Verification. You will find a webinar, a sample agreement with an agent for verification of identity, FAQS, and other resources.

When a lawyer leaves a firm to practise elsewhere, the lawyer and the law firm have ethical responsibilities to clients and to each other. See the articles, "Ethical considerations when a lawyer leaves a firm," Summer 2017 Benchers’ Bulletin and "The departing lawyer in the age of Covid-19 - Ethical, legal and practical guidance,” Summer 2020 Benchers' Bulletin, as well as "Winding Up A Practice: A Checklist" for professional responsibility obligations and guidance.

First, refer to rules 3.4-42 and 3.4-43 of the BC Code, then read Lawyers Sharing Space. We recommend you call the Practice Advice department if you have specific questions or scenarios.

You will find three helpful articles in the Client Files section of the website. Read the detailed article “Closed Files, Retention and Disposition” on what to keep and for how long, including information on storage considerations, secure destruction of physical and electronic documents, and other information. For a brief overview of retention rules, see “Closing a file: what documents to keep and for how long.” “Ownership of Documents in a Client’s File” explains the ownership of file contents.

If you are still at the planning stage for retirement, see the succession plan information at Succession Planning & Practice Coverage. Succession planning is an important consideration for any sole or small firm practitioner in advance of retirement. If you are actually beginning the process of winding down, see the article Winding Up A Practice: A Checklist.

On the financial side, there are rules about reporting judgments, insolvency trust shortages and late mortgage discharges. Law Society Rule 3-50(1) requires a lawyer against whom a monetary judgment is entered and who does not satisfy the judgment within seven days after the date of entry to immediately notify the Executive Director in writing. Rule 3-51 requires an “insolvent lawyer” (defined in Rule 3-47) to immediately notify the Executive Director in writing that they have become an insolvent lawyer and deliver the information and material described in that rule. A lawyer must immediately make a written report to the Executive Director, including all relevant facts and circumstances, if the lawyer discovers a trust shortage greater than $2,500, or is or will be unable to deliver up, when due, any trust funds held by the lawyer (Rule 3-74). Law Society Rule 3-96 requires that you report to the Law Society the failure of a mortgagee to provide a registrable discharge of mortgage within 60 days of any real property transaction. You are also obliged to report to the Law Society the failure of another lawyer or a notary to provide satisfactory evidence that they have filed a registrable discharge of mortgage as a pending application at the Land Title Office within that 60-day period. Use the Mortgage Discharge Reporting Form. A Rule 3-96 report is not a complaint.

Lawyers, articled students, practitioners of foreign law and applicants must report criminal charges in writing to the Executive Director (Rule 3-97).

With respect to the security of records, lawyers must immediately notify the Law Society's Executive Director in writing if the lawyer has reason to believe that they have lost custody or control of any of the lawyer's records for any reason, anyone has improperly accessed or copied any of the lawyer's records, or a third party has failed to destroy records completely and permanently despite instructions from the lawyer to do so (Rule 10-4).  Report to the Executive Director c/o Manager, Intake and Early Resolution in writing at professionalconduct@lsbc.org. For further guidance, see Rule 10-4 Reports, August 31, 2021 Discipline Advisory.

Code rule 7.1-3 requires a lawyer to report to the Law Society a number of other circumstances, only one of which explicitly refers to money, i.e. a shortage of trust funds. The most frequent question asked of Practice Advisors about this rule is whether a lawyer has to report a breach of undertaking. The rule requires a lawyer to report a breach of undertaking that has not been consented to or waived. Sometimes the lawyer who has been the recipient of the undertaking will waive or consent to the breach when his or her client has not been materially prejudiced; waiver or consent can occur after the time for fulfillment of the undertaking has passed. The Intake and Early Resolution Department of the Law Society is of the view that lawyers must also self-report their own breaches of undertaking, as well as breaches by other lawyers. See Code rule 7.1-3 for all the other types of matters that must be reported to the Law Society.

Another frequent question is whether a lawyer should report another lawyer for incivility or bullying. This is not required, but it may be reported if the lawyer feels it is warranted. Lawyers are encouraged to call a Practice Advisor to discuss reporting a lawyer to the Law Society as it is a serious matter.

There are several resources at Practices Resources > Financial / Accounting / Tax. However, the Law Society is not able to provide tax advice. We suggest you either contact your bookkeeper, accountant or a tax lawyer if you have specific questions, and refer to the following resources:

• "A Practical Guide to Determining when to Charge GST on a Supply of Legal Services," by Thomas D. Ciz, The Advocate, March 2017;
• BC Ministry of Finance Bulletin PST 106 – Legal Services;
• Provincial Sales Tax FAQs or email CTBTaxQuestions@gov.bc.ca;
• Canada Revenue Agency (CRA) GST/HST Policy Statement P-209R – Lawyers’ disbursements (taxable/non-taxable); and
• CRA advance rulings.

A “limited scope retainer” is the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client. Consider whether it is possible to provide limited scope retainer services competently in the circumstances. See the article Limited scope retainer FAQs (Fall 2017 Benchers’ Bulletin, Practice Advice) and the free, one-hour CLE-TV: Limited Scope Retainers on YouTube.

If a lawyer carries a client’s confidential information on the lawyer’s electronic device (including smart phones, laptops and USB sticks), the client’s information may be compromised if the device is searched.  As a result, the Federation of Law Societies developed a resource, Crossing the Border with Electronic Devices:  What Canadian Legal Professionals Should Know.  The resource concludes with 15 suggestions to minimize the risks of compromising professional responsibilities and exposing a client’s information. As this resource was written for lawyers in all Canadian jurisdictions and Quebec notaries,  BC lawyers are encouraged to refer to the following rules when reading the resource:  Law Society Rules 10-3 and 10-4 and the Code of Professional Conduct for British Columbia rules 3.3-1, 3.3-2, 3.3-2.1 and 3.4-23.   

The Law Society is committed to addressing mental health and substance use issues involving lawyers, their families, support staff and articled students; more information can be found at the Lawyer Well-being Hub. The Hub provides a central access point for information about support available to lawyers and their families, including easy-to-access resources, videos, tools and information.

The Law Society funds several programs that provide free and confidential education, support and referral services to lawyers, their families and other members of the legal community. For more information about these services, including contact details, please see:

• TELUS Health One
• LifeSpeak
• Lawyers Assistance Program