Ethics Framework

1)Good Character

  1. Admission
  2. Mandate: Section 3 of the Legal Professional Act (“LPA”)
  3. Section 19 
  4. Question on Admission Form indicating good character

Process: initiated by Admission Form: credentials hearing: Rule 2-54 of Law Society rules allows Executive Director to initiate investigation. 2-56(1) refers applicant to credentials committee. Hearing, then can appeal under 5-16 then can go for judicial review to BCCA.

Definitions of “Good Character”:

1)“What is “Good Character” – The Advocate (Page 5 of CAN)

2)Cases:

  1. McOuat v. LSBC (BCCA): consideration on BoP that M is any different from the man who yielded to temptation years ago. The court considered many factors (In CAN page 6).
  2. Facts: misappropriated client trust funds, manipulated the trust account records, fabricated evidence. Totals reached half a mill, admitted his wrong doing, 5 yrs jail.
  3. Conclusion: court not satisfied M was transformed even after prison.
  1. LSBC v. DM (1994): good character and repute must be to some extent the expectation of both public generally and other lawyers specifically. The assessment must be on current character. Demonstrating rehabilitation is necessary, imperfect past will not necessarily result in rejection. Principles listed (page 7 of CAN)
  1. Mohan v. Law Society: Example of rehabilitation v. Dissent (prof)
  1. Kay v. LSBC: adoption of Watt v. Law Society of Upper Canada (See Watt Test). Panel used McOuat but the Benchers on review said should have used Watt because issue whether he was rehabilitated.

Facts: insolvent as of 1998, left Canada, leaving clients and debtors, came back

Conclusion: not admitted.

  1. Legemant v. LSBC: continued to meet regularly with therapist, letters of reference, decided not on sexual assault allogation, apologized for weed, clearly felt bad but downplayed its seriousness. But panel found he was genuinely remorseful especially the effect on landlord.
  2. Facts: fisherman, marijuana grow-ops, alleged sexual assault found not credible.
  3. Conclusion: Admitted.
  1. Gayman v. Law Society of BC: further guiding principles (the 10) in addition to Watt.
  2. Facts: previously disbarred for conduct unbecoming, knowingly breached a trust account resulting in loss of about 1 mil to some 20 investors.
  3. Conclusion: reinstated.

Critique of Good Character: Alice Woolley, argues we should get rid of it.

Policy on Good Character: Good character assessments are one means of conveying to the public and the profession that licensees must comply with standards of professional conduct. Transparent definition of good character would deter certain individuals whose past behaviors raise concerns and who would be unwilling to maintain professional standards in the future, from applying for a license. Assessments enable law societies to evaluate the risk to the public of the admission of particular individual to the profession.

Chapter 2 of the BC Code for Professional Conduct: A lawyer is a “minister of justice, an officer of the courts, a client’s advocate and a member of an ancient honorable and learned profession.” This is a duty to:

  • Promote the interests of the state
  • Serve the cause of justice
  • Maintain the authority and dignity of the courts
  • Be faithful to clients
  • Be candid and courteous in relations with other lawyers
  • Demonstrate personal integrity

2)Discipline

Mandate of the Law Society: protect the public interest in the administration of justice.

Section 38 of LPA: Authority to discipline members for professional misconduct.

  1. Conduct Unbecoming
  2. Test (LSBC v. Berge):A lawyer does not get to leave his or her status as a lawyer at the officer door. The imposition of this high standard of social responsibility, with the consequent intrusion into the lawyer’s private life, is the price that lawyers pay for the privilege of membership in a self-governing profession. Conduct unbecoming not only includes the obvious examples of criminal conduct and dishonesty, but also includes “any act of any member that will seriously compromise the body of the profession in the public estimation.”
  1. Professional Misconduct:
  1. Test (LSBC v. Martin):“whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members; if so, it is professional misconduct.”
  1. Ogilvie Factors
  2. LSBC v. Lessing (2013): notes that not all of the Ogilvie factors would come into play in all cases and the weight given to these factors would vary from case to case.
  3. Cases:
  4. LSBC v. Martin:Professional Misconduct analysis. Marked departure from standard of competent solicitor acting in the course of his profession. He knew or ought to have known, or he was reckless and careless or willfully blind as to whether accounts were valid, grossly negligent as a result or negligent in aggravated circumstances.
  1. Facts: failed to adequately review the accounts of a client’s children whom he hired to assist him in the Air India case.
  1. Conclusion: culpable, professional misconduct, fined 20K, 35K in costs.
  1. Lawyer 10 Case:“isolated, innocent, honest mistake”, dishonest is not necessary component of professional misconduct. The conduct must not only be a marked departure form the norm but must also be blameworthy.
  1. Facts: Provided an affidavit that had said “the funds were not paid to the petitioners”, it was sworn to be personal knowledge, this was false.
  1. Conclusion: not professional misconduct. See dissent on honest mistake (page 19)
  1. Integrity and Civility:
  2. See Code Provisions.
  3. Standards: Duties owed to state, courts, client, other clients and to oneself.
  4. Chapter 5: advocacy, courtesy, undertakings
  5. BC Code 7.2: Courtesy and Good Faith (responsibility to lawyers and others)
  1. Cases:
  2. Johnson v. LSBC: “fuck you” common everyday usage, uttered in anger directed at witness or another lawyer or member of the public is a marked departure. Professional misconduct, sanctioned.
  1. Foo v. LSBC: In court house, social worker was told that she should be shot. Sanctioned, professional misconduct must pay 8.8K. Not playful banter, lawyers can make jokes, but actions, words and conduct must follow how lawyers are required to act. Considered worse since in court house.
  1. McLean v. LSBC:Numerous citations, suspended before on similar issue (failued to provide info during audit), did not cooperate with LS investigation, did not appear for hearing. No possibility of remediation or rehabilitation here.

Facts:failed to provide full and substantive responses to communications from the law society. Failed to comply with condition on his practice checking in with practice supervisor. Kept practicing law after PSA terminated.

Conclusion: Professional Misconduct. Disbarred-only way to protect public.

  1. Vlug v. LSBC: egregious conduct, more culpable than sloppy, misinformed or confused. Knowingly misrepresented facts while appearing in BCSC and BCCA. Acted uncivilly in court and with other lawyers
  1. Facts: V was advised by other lawyer that he should provide client’s documents to doctor. He failed to do so, lied said the other lawyer told him in a telephone convo he would do it.
  1. Conclusion: professional misconduct. 6 months suspension, reduced to 7 weeks on review.
  1. Laarakker v. LSBC: do not make discourteous remarks, especially personal.
  2. Facts: Demand letter sent to L’s client regarding payment for child’s shoplifting. L responded with unkind letter. See specific notes.
  3. Conclusion: Professional Misconduct.
  1. Groia (Ontario):This test is satisfied when such conduct ‘calls the administration of justice into disrepute,’” “The new but vague test, and its application by the Divisional Court, creates an unreviewable prosecutorial discretion in the hands of the LSUC, and results in uncertainty and lack of meaningful guidance for lawyers, who are now at the whim of their regulator.”
  2. Facts: citation of repeated personal attacks on prosecutors in the court room.
  1. Dore: Wrote rude letter to judge who in his reasons refered to D’s arguments as “bombasitic rhetoric and hyperbole, of engaging in idle quiblling of being impudent of doing nothing to help his client”
  2. Conclusion: Discipline reasonable, professional misconduct.
  1. Financial Misappropriation
  1. Standards/Rules
  2. Obligations in Communications (Rule 7.1)
  3. 7.1-2: Financial obligations
  4. 7.1-3: Duty to Report
  5. Undertakings: 7.2-11
  6. Rules on trust accounts
  7. See also:
  8. 3-57: first prepare bill for the fees, deliver to client then withdraw from trust.
  9. 3-59: record all funds recived and disbursed.
  10. 3-62: keep record of all bills delivered to clients or persons charged
  11. 3-66: requires lawyers to report shortage to Executive Director
  12. 3-56: when allowed to withdraw from trust account
  13. Cases:
  14. John David Briner: disbarred, committed professional misconduct by misappropriating trust funds of 50K. See CAN for details.
  1. Christopher Penty v. LSBC: billed clients that misrepresented the amount that he was entitled to bill. Billed client for services of legal assistant as if it was done by him, without express agreement from client. He admitted this.

Conclusion: professional Misconduct. 4 month suspension 2.5K costs.

  1. SAS: example of when client disappears money left in trust, what to do and of a lawyer taking money out of trust not billed properly for client. It wasn’t a lot of money. (Rule 3-89 – LS takes money in trust for disappeared clients). She knew or ought to have known, she did not take any steps to determine what had been billed to her clients and whether all or any of those charges were properly billable before she took money out of trust.
  1. Facts: contrary to rule 3-56(1) Sas misappropriated funds held in trust for 22 clients or improperly withdrew or authorized the withdrawal of trust funds without them being properly charged.
  1. Conclusion: Misconduct.
  1. Martin Wirick: scammed a total of 40 million, 107 fraudulent real estate transactions. Gill or one of his companies would purchase property and redevelop it, sell it then W would receive the sale proceeds then would misdirect the down payment and mortgage funds to Gill instead of paying off the prior encumbrances.

Client Relations

Honesty and candour (Rule 3.2-2):When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.

Dishonesty, fraud by client (Rule 3.2-7):A lawyer must not engage in any activity that the lawyer knows or ought to know assists in or encourages any dishonesty, crime or fraud.

Client ID Rule: Law Society Rule 3-98 to 3-109 require lawyers to follow client ID and verification procedures when trained by a client to provide legal services subject to various exceptions. These rules require that lawyers make reasonable efforts to obtain basic identification information about clients. The reasons for this rule is that we do not want a conflict of interest, bills and accounts.

No Cash Rule: Rule 3-61.1 says that a lawyer who received cash from a lient is a not a lawyer’s employer, must maintain a cash receipt book of duplicate receipt book and make a receipt in the receipt book for the amount of cash received. A lawyer can refuse to accept cash as and ought to do so so when it would assist in or encourage any dishonest acts, crime or fraud.

When Client is an Organization (Rule 3.2-3)Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.

Fees (Rule 3.6): A lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has disclosed in a timely fashion. Fair and reasonable fees depends on several factors (commentary in rules – see CAN page 34)

Written Agreements (Rule 3.6-2): a lawyer may enter into a written agreement in accordance with governing legislation that provides that the lawyer’s fee is contingent, in whole or in part, on the outcome of the matter for which the lawyer’s services are to be provided.

Contingency Fees: these agreements must be in writing. They are NOT permitted in family law cases involving child custody or access.

In a claim for personal injury or wrongful death arising out of a motor vehicle accident, the maximum contingency fee allowed is 33.3%

All other cases involving PI or wrongful death: max 40% of amount recovered

Termination of Contingency Fees: special circumstances apply when the retainer is pursuant to a contingency agreement. In such circumstances, the lawyer has impliedly undertaken the risk of not being paid in the event the suit is unsuccessful. Accordingly, a lawyer cannot withdraw from representation for reasons other than set out in Rule 3.7-8 (Obligatory withdrawal) unless the written contingency contract specifically states that the lawyers has a right to do so and sets out the circumstances under which this may occur.

Referral Fees (Rule 3.6-6): if a lawyer refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter, and the referral was not made because of a conflict of interest, the referring lawyer may accept and the other lawyer may pay, a referral fee, provided that:

(a)the fee is reasonable and does not increase the total amount of the fee charged to the client

(b)the client is informed and consents

Firing a Client (Page 43):

Withdrawal of Representation (Rule 3.7-1): A lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client.

  • Commentary: Client should be given adequate notice (unless unable to find him/her) and enough time to find new representation. Withdrawal should not be used to waste court time.
  • Discretion: Lawyer’s discretion to withdraw is not reviewable by the court, subject to its authority to cite a lawyer for contempt if there is evidence that withdrawal was done for some improper purpose.

Loss of Confidence Withdrawal (Rule 3.7-2): If there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.

Non-Payment of Fees (3.7-3): If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw.

Obligatory Withdrawal of Representation (Rule 3.7-7):Must withdraw if: (a) discharged by a client, (b) a client persists in instructing lawyer to act contrary to professional ethics or (c) the lawyer is not competent to continue to handle the matter.

Manner of Withdrawal (3.7-8): minimize expense and avoid prejudice to the client, notify client in writing, list reasons if any, list pending dates in litigation, notify all other parties, subject to lien, deliver client materials and all other property to client, accounting, final account.

Threatening Criminal or Regulatory Proceedings (Rule 3.2-5): A lawyer must not, in an attempt to gain a benefit for a client, threaten or advise a client to threaten: (a) to intiate or proceed with a criminal or quasi-criminal charge, or (b) to make a complaint to a regulatory authority.

3)Confidentiality

  1. Rules:
  2. 3.3-1: Confidentiality
  3. 3.3-2: Use of confidential Information
  4. See Memoir example.
  1. See Scope + Confidentiality v. Privilege
  1. Exceptions:
  2. Imminent Risk of Death or Serious Bodily Harm: Belief on reasonable grounds that there is imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm. (Rule 3.3-3)
  3. See Simth v. Jones (Page 40)
  1. Authorization by client (a)
  2. Legal Compulsion (b)
  3. Permited by Code or Law Society ((c) or (d))
  1. Procedure for Disclosure under exception: prepare written notes ASAP, which should include (commentary under rule 3.3-3):

(a)The date and time of the communication

(b)The grounds in support of the lawyer’s decision to communicate the information, including the harm he or she intended to prevent, the identity of the person who prompted him to communicate the information as well as the ID of the person or group of persons exposed to the harm. And

(c)The content of the communication, the method of communication used and the ID of the person to whom the communication was made.

  1. Case:
  2. McCormick v. LSBC (Leading Case): CBC interview case, conduct unbecoming, breached the rules. 45 day suspension, costs of 5K.

4)Conflict

  1. Rules:
  2. Rule 3.4-1: A lawyer must not act or continue to act for a client where there is ac conflict of interest except as permitted under this Code.
  1. Common Law:R. v. Neil 2002 SCC 70 and Strother v, 3464920 Canada Inc. 2007 SCC 24: lawyer must not represent one client whose legal interests are directly adverse to the immediate legal interests of another client without consent. This duty arises even if the matters are unrelated.
  1. Policy: Duty of Loyalty (See CAN) + Effect of Conflict
  1. Factors (Commentary on 3.4-1):
  2. The immediacy of the legal interests
  3. Whether the legal interests are directly adverse
  4. Whether the issue is substantive or procedural
  5. The temporal relationship between the matters
  6. The significance of the issue to the immediate and long-term interests of the clients involved and
  7. The client’s reasonable expectations in retaining the lawyer for the particular matter or representation
  1. Exception:
  2. Consent (Rule 3.4-2): Where there is express or implied consent from all clients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.
  1. (a) Express consent must be fully informed and voluntary after disclosure.
  1. (b) Consent may be inferred where all apply:
  2. The client is a government, financial institution, publically traded or similarly substantial entity or an entity with in-house counsel
  3. The matters are unrelated
  4. The lawyer has no relevant confidential information from one client that might reasonably affect the other and
  5. The client has commonly consented to lawyers acting for and against it in unrelated matters
  1. Case Law
  2. R. v. Neil SCC:Bright Line Rule Articulated: lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client (even if the two mandates are unrelated) unless both clients consent after receiving full disclosure and the lawyer reasonably believes that he or she is liable to represent each client without adversely affecting the other.
  1. Canadian National Railway Co. McKercher LLP, 2013 SCC 39: Scope of “Bright Line Rule”
  2. Facts: Wallace was plaintiff in proposed law suit against CN, M was acting for CN in unrelated matters. M withdrew from representing CN before and immediately after notice of claim. CN moved to claim it was a current client of M, disqualifying M from representing W.
  1. Conclusion: M breached bright line, breaching both duties of commitment and candour. Appeal allowed for CN. Here unfair advantage in representing W.

Note: rule on acting against former clients: 3.4-10! In CAN