Law Society practice advisors typically answer thousands of emails and telephone calls a year. It doesn’t take long for patterns to emerge, so we thought it would be useful to compile a list of some of the most frequent types of calls.

The answers will not fit all fact patterns and may not go into sufficient detail for every situation. Contact a practice advisor if you remain unclear or have further questions after reading this material. All calls to Practice Advisors are confidential, except in the case of trust fund shortages.

In some cases there may be other parts of the Code of Professional Conduct for British Columbia (“Code”) that relate to your situation and are not referred to in the below material. In all cases review the list of contents to the Code to determine what other rules or appendices may apply. This annotated version of the Code available on the Law Society website is updated frequently and contains annotations of some applicable Ethics Committee opinions, discipline decisions and case law. The PDF version of the Code (which is useful for word search and printing, and can be downloaded from our Member's Manual web page), is also on the website but does not contain annotations and is updated when the Member’s Manual update package is printed (usually three to four times a year). The Ethics Committee is of the opinion that lawyers should be guided equally by the language of the rules, the commentary and the appendices in the Code.

Lawyers must exercise their professional judgment respecting the correctness and applicability of this material. The Law Society accepts no responsibility for any errors or omissions and expressly disclaims any such responsibility.

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 he or she is 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 Insurance 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.

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 moves on”: Practice Watch, Summer 2014 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 to 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.

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 he or she has 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 she or he generally has 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 his or her mental functioning when a decision needs to be made.

Further information is available at Capacity: “Acting for a client with dementia” (Practice Watch, Spring 2015 Benchers’ Bulletin) and the BC Law Institute Report on Common-Law Tests for Capacity. If there are issues with a client’s capacity, there may also be concerns about undue influence. For insight into undue influence and a checklist for recognition and prevention see the BC Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide.

If the client is incapable of giving instructions, and you reasonably believe he or she has no other agent or representative, and a failure to act will result in imminent and irreparable harm, you may take action to the extent necessary to protect the person (rule 3.2-9, commentary [2] to [5]). Rule 3.3-1, commentary [10] makes an exception to the duty of confidentiality in such a circumstance.

Read Law Society Rules 3-98 to 3-109. See also the extensive information available at Client Identification and Verification. You will find a Client Identification and Verification Checklist, a sample attestation form for verification of identity attached to the Checklist as Appendix I, a sample agency agreement attached to the Checklist as Appendix II, and FAQs devoted to this topic.

There are several resources at Law Office Administration > 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:

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.

There are two helpful articles at Client Files. Read “Closed Files, Retention and Disposition” for information on what to keep and for how long, including information on secure destruction of physical and electronic documents. “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 Sole Practice: a Checklist.

On the financial side, there are rules about reporting judgments, insolvency and trust shortages. 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 he or she has 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).

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

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.