Federation of Law Societies of Canada
and
Canadian Bar Association
__________________________________________________________________
NATIONAL FAMILY LAW PROGRAM,
2006
__________________________________________________________________
SINCERITY
Principles and Practice of
Professional, Ethical and Legal Responsibility
for Family Law Practitioners
Prepared by
DAVID C. DAY, Q.C.
of the Newfoundland Bar, St. John’s
______________________________________________________________________________
Summaries of, and excerpts from, decisions, legislation, authors, and reports on principles and practice of professional, ethical, and legal responsibility, published during the period, primarily, from June 2004 to June 2006.
June 2006
TABLE OF CONTENTS
(General)
DEDICATION 1
1.0 INTRODUCTION 3
2.0 SOURCE AND STANDARDS OF RESPONSIBILITY 8
2.1 Professional And Ethical Responsibility 8
2.2 Legal Responsibility 32
3.0 APPLICATIONS OF STANDARD OF RESPONSIBILITY 63
3.1 Relationships With Clients-Retainer And Authority 63
3.2 Relationships With Clients-Conflicts Of Duty 68
3.2.1 Generally 68
3.2.2 Conflict Found 104
3.2.3 Conflict Not Found 105
3.3 Relationships With Clients-Rendering Services 107
3.3.1 Generally 107
3.3.2 Confidentiality And Privilege 132
3.3.3 Negotiations 158
3.4 Relationships With Clients-Personal 175
3.5 Relationships With Clients-Special Cases 185
3.6 Relationships With Third Parties 189
3.7 Relationships With Other Lawyers 204
3.8 Relationship With Courts 215
3.9 Relationship With State 234
4.0 PROCEEDINGS DERIVING FROM BREACHES OF STANDARDS OF RESPONSIBILITY 246
4.1 Administrative: Disciplinary 246
4.2 Judicial: Penal 269
4.3 Judicial: Summary 273
4.4 Judicial: Civil 277
5.0 FEES AND COSTS 297
5.1 Fees 297
5.2 Costs 310
TABLE OF CONTENTS
(Detailed)
DEDICATION 1
1.0 INTRODUCTION 3
2.0 SOURCE AND STANDARDS OF RESPONSIBILITY 8
2.1 Professional And Ethical Responsibility 8
Professionalism v. Ethics 8
Whiplash and other useful illnesses 9
Bringing Buddhism to family law 9
Reference roulette 11
Evaluating employees 12
Family time hard to find, lawyers say 13
The perils of practicing 24/7 14
Taking care of their own 15
Revealing the Soul of a Soulless Lawyer 16
Osgoode Hall 17
Professionalism [:] Changing Interior Voice to Exterior Voice 17
Law blogs-clicking with clients 19
Lost and Found 20
Fighting the Fear Factor 22
Fewer lawyers want to become sole practitioner, survey finds 24
Wound Up? Wind Down 26
Attention, shoppers [:] Where the lowest price really is the law 27
Love of criminal work still inspires framed Greenspan brothers 29
Under the Radar [:] Depression takes a Toll 30
2.2 Legal Responsibility 32
Legal Malpractice and Ethical Issues: How Are They Connected? 32
One dog; two leashes 40
Are Lawyers Happy? 40
Pro bono policies entrenched 43
Law Society of B.C. task force to examine unbundling of services 44
Modern Obligations 46
Safety handbook for lawyers unveiled 47
Personal safety under threat when acrimony hits home 48
Shared quarters 50
Credit where it’s due 52
What tears may tell 53
Why Do So Few Women Reach the Top of Big Law Firms? 55
Supervised Lawyers Report Struggle to Balance Work and Family,
Survey Shows 57
Problematic Perfectionism 58
Uncivil law 59
3.0 APPLICATIONS OF STANDARD OF RESPONSIBILITY 63
3.1 Relationships With Clients-Retainer And Authority 63
Confirming Oral Advice In Writing 63
Zeleny v. Zeleny 63
New light shed on joint retainer questions 65
3.2 Relationships With Clients-Conflicts Of Duty 68
3.2.1 Generally 68
It’s not you, it’s us 68
Just say no [:] the perils of taking on family and friends as clients 70
Gauthier v. Gauthier 71
Prohibited Provisions 72
Beyond Conflicts of Interest to the Duty of Loyalty [:] from
Martin v. Gray to R. v. Neil 73
Dobbin v. Acrohelipro Global Services Inc 76
Duty of Loyalty 80
3.2.2 Conflict Found 104
McWaters v. Coke 104
3.2.3 Conflict Not Found 105
Hildinger v. Carroll 105
R v. Barsoum 106
3.3 Relationships With Clients-Rendering Services 107
3.3.1 Generally 107
Divorce the most expensive event in one’s life: survey 107
Quebec lawyers have new weapon against fraud with
expert graphologist 108
Access to Justice? Forget It! 108
Make Clients feel important 111
Ethical Issues and Dilemmas in an Elder Law Practice 112
Handle difficult clients with the care they deserve 127
Keep your clients in the loop 130
3.3.2 Confidentiality And Privilege 132
Is solicitor-client privilege on tax advice alive and well? 132
Canadian Child Welfare Law [:] Children, Families and the State 132
The Meaning of ‘Forever’ 134
Lawyers and Ethics: Professional Responsibility and Discipline 135
Dead Sea Scrolls 136
Pushing The Envelope Of Production 137
Voice Mail: The New Smoking Gun? 140
H. (A.) v. H. (J.T.) 141
N.S. judge removes counsel for reading privileged e-mail 145
Firms begin to see the major benefits of web portals 148
E-mail Evils [:] The Internet’s Postal System Has Become Bloated,
Blocked, Risky and Less Reliable 150
The E-mail Advice Line [:] Participating in Web Site Answer
Services can be Gratifying, but Ethics Issues Abound 152
General Solicitor-Client Privilege Rule 153
3.3.3 Negotiations 158
Ethics: Holding the Question 158
Two Income Couples 162
Husband who balked at $2M settlement now faces $7M
divorce judgement 165
Annual Review of Family Law 166
Rother v. Rother 170
Brewer v. Hewitt 170
Ristimaki v. Cooper 171
Decision should alert family lawyers to rethink their settlement
negotiation style 172
3.4 Relationships With Clients-Personal 175
How do lawyers deal with clients who become emotionally
attached? 175
Bordering on chaos 176
Codifying conduct 179
ODARA: Ontario Domestic Assault Risk Assessment 180
Ripple Effects [:] Education and Self-Care Can Help Lawyers Avoid
Internalizing Client Trauma 183
3.5 Relationships With Clients-Special Cases 185
Difficult Clients and Ethical Issues 185
Pro bono? No thanks - I gave at the office 187
Martin’s Annual Criminal Code [,] 2006 188
3.6 Relationships With Third Parties 189
Trube v. Hodgson, Russ, LLP 189
Surveillance Still a Useful Shield Against Claims 189
Recent Ontario Case May Limit Impact of New Privacy Laws 190
Fair play for paralegals 192
Violence against lawyers increasing 193
How was work today, dear? 194
Office romance: a bad idea just got worse 196
Hidden Harassment 198
3.7 Relationships With Other Lawyers 204
Electronic Recordings by Lawyers Without the Knowledge
Of All Participants 204
Ethics and Liability Issues Presented by Impaired Lawyers 204
Obligation of a Lawyer to Report Professional Misconduct by a Lawyer
Not Engaged in the Practice of Law 205
Motion to squash 206
Duty Calls [:] Report Colleague’s Ethics Breaches Even When Violator
Is Not a Practicing Lawyer 207
Law & Marriage 209
E-mail blast nearly leads to ‘divorce’ 211
The communication is from a law firm and may be privileged 212
May vs. Must 212
Reporting Misconduct of Lawyers: Some Courts are Ready to Take Aim at Fire-at-Will Doctrine 214
3.8 Relationship With Courts 215
Canavan v. Feldman 215
The Trial of Mike Tyson 215
Halton Condominium Corp. No. 242 v. Law Development Group
(Georgetown) Ltd 218
Rideout v. Rideout 219
R. v. Lyttle 220
Brace v. Canada (Customs and Revenue Agency) 221
Lawyers and Ethics: Professional Responsibility and Discipline 226
Alleged money launderer must have counsel: court 228
Lang Michener Supreme Court of Canada Newsletter 229
Judge’s order blister skin off counsel 230
Judge awarded $568,500 libel settlement 230
Client Perjury and the Criminal Defence Lawyer as Lie Detector 232
3.9 Relationship With State 234
[A.] v. Canada 234
Lawyer’s trust accounts and disbursements 238
Administrative practices aren’t law 239
Lawyers targeted for money laundering 241
Lawyers and laundromats 242
4.0 PROCEEDINGS DERIVING FROM BREACHES OF STANDARDS OF RESPONSIBILITY 246
4.1 Administrative: Disciplinary 246
The Perils Of The Profession; The Lawyer As Accused 246
Complaints Received 521
Nova Scotia Barristers’ Society v. Solicitor “Y” 252
Lawyers Duty to Report Rule Violations by Another Lawyer Who Suffers
from Disability or Impairment 256
Rumpole and the Penge Bungalow Murders 257
18M payout confirmed to victims of defalcation by Vancouver lawyer 258
Reyat’s ex-Lawyer put client’s kin on payroll, legal body says 259
The Thin Blue Line [:] How a Lawyer Owed Up to a Fiction and Officer’s
Murder was solved 260
Run for cover 262
LSUS panel orders new discipline hearing 263
The Wirick Affair 264
Attorney Coupon offer Clipped 267
4.2 Judicial: Penal 269
The ultimate tax tip 269
City lawyer to serve year in U.S. jail 270
4.3 Judicial: Summary 273
Suddenly Uninsured 273
Lawyers and Ethics: Professional Responsibility and Discipline 275
4.4 Judicial: Civil 277
Folland v. Reardon 277
CBC hit for $1.8M in libel judgment 290
Client sues lawyer, alleging he raped her 291
Wrongly jailed retiree awarded $400,000 293
Jerry’s Enters Inc. V. Larkin, Hoffman, Daly & Lindgren, Ltd 294
Nova Scotia law firm will not face an interim injunction 295
5.0 FEES AND COSTS 297
5.1 Fees 297
Billing by the hour 297
The Price is Right 300
Time-based billing disliked, but no better option in sight 302
A Billable Revolution 304
Paid, Not Played [:] Estimating Fees, Charging High Retainers Help
Solos Avoid Payment Hassels 307
The money manifesto [:] How to collect your bills and
improve client relations 308
5.2 Costs 310
Costs in Family Law Proceedings 310
Jeans v. Jeans 312
No costs to winners for misleading court on time 314
Judge holds online research can cost less 314
(i)
DEDICATION
James G. McLeod
1947 – 2005
(prepared by Alfred Mamo, legal counsel, author, editor, lecturer,
and member of the Ontario Bar)
On October 4th 2005, at approximately 5:15 p.m., the enormous energy, encyclopedic knowledge and unmatched intellect of the irrepressible Professor James G. McLeod (Jay) came to an abrupt end, brought about by a massive heart attack. Family law has lost its "oracle" but, in his prolific writings, Jay has left us a compass that we can still use to guide us for a long time to come when we are deliberating a particular point of view in family law matters.
To Jay's wife, Margaret, and his children, Erin, Jamie, Kathleen, Ian and Michael, who featured so prominently in so many of Jay's writings, we offer our most heartfelt condolences and thanks for sharing your husband and father with us for all these years. I know that your love energized him and provided him with the drive to accomplish so much for the benefit of all of us.
His Philosophy of life:
· “To paraphrase Oscar Wilde, I think, consistency, is the mark of a small mind.”
· “Honesty is the best policy, at least if you have no choice. Mark Twain, I think…”
· “I worry about overly committed people, regardless of what they are committed to.”
· “Search for a final, final agreement, seems like a search for a rounder circle.”
Interpreting Judgments:
· “Don’t assume Judges will interpret a contract reasonably. Or, if you prefer, it is still a bad time to be a husband.”
· “It may be a nice answer, but not to any question I can think of.”
· “Make up your own explanation, because I don’t have one.”
· “I have no idea how what happened, happened…pass and pretend it did not happen.”
· “Yes, yes alcohol is a disability for employment law purposes, but Family Judges know different.”
· “This has to be wrong for any number of reasons, if only I could think of them…”
Understanding of Human Relationships:
· “For the father, it had to be his way. There was not even much room for the high way.”
DEDICATION
(Continued)
· “They agreed on nothing, assuming nothing, is something you can agree on.”
· “The children did not especially like the new partner, but, luckily for the mother, her history of instability suggested that he was on his way out anyway.”
· “He did not speak English and trusted his wife. Silly man.”
· “The parents met on the internet and after the initial euphoria of gigas byting, reality set in.”
· “If you get to marry, you get to divorce. They go together [-] life love and marriage, just later.”
The Practice of Family Law:
· “Family Law Rule 3: There is a support law for women, a support law for men, a support law for wealthy men and a special set of rules for wealthy men in the 416 telephone exchange.”
· “Since mother and child were both Canadians, they would just be sent back here where the only risks are SARS, mad cow and hockey teams that break your heart.”
· “This is a great case to save for when your local legal “butthead” delivers one of his or her usual annoying affidavits.”
· “In the end, the Rules of Procedure and litigation involve[ing] self-represented litigants are a lot like weebles – you expect them to wobble but not fall down.”
· “This is one of those cases that make you want to do real estate law.”
· “Consents, like agreements, can be dangerous to your wealth.”
To Sum it all up:
· “It’s scary sometimes when common sense and law intersect.”
· “My fingers are getting tired and I have a tee time coming up.”
Responsibility 65 15.06.06
1.0 INTRODUCTION
Nature Of Paper
This anthology summarizes, and excerpts from, judicial decisions, book and journal scholarship, legislation and reports, published primarily from June 2004 to June 2006, which address (i) selected principles of responsibility – professional, ethical, and legal – governing the law vocation and (ii) the practice of those theorems of responsibility, particularly by "family
law" practitioners. (Unless essential to understanding of the text, footnotes are omitted from
excerpted material.)
Previous Papers
Six previous comparable anthologies have been published: "Scruples" (1987), 2 C.F.L.Q. 151-197 (canvassing the period from date of legal memory to 1986); "Scrutiny" – for the National Family Law Program, 1996 (covering the period 1986 to 1996); "Security" – for the National Family Law Program, 1998 (covering the period 1996 to 1998); "Sanity" – for the National Family Law Program, 2000 (covering the period June 1998 to June 2000); “Sagacity” – for the National Family Law Program, 2002 (covering the period June 2000 to June 2002); and Sensitivity – for the National Family Law Program, 2004.
Caveat
Accompanying this anthology (likewise its ancestors) is a caveat; more important than the anthology itself. The caveat is articulated by the Honorable Michel Proulx of Quebec Court of Appeal and David Layton, Vancouver civil and criminal litigator, in Ethics And Canadian Criminal Law – the most recent substantial work about lawyer responsibility in Canada (Toronto: Irwin Law, 2001), at p.3:
… while certain ... [responsibility] issues yield to reasonably clear answers, on many occasions identifying or applying the proper standards can be a maddeningly challenging exercise. Reasonable people can differ as to the proper … approach to apply in a given situation. Legal … [responsibility] is not an exact science, with every problem amenable to a set and indisputable resolution. What can be most frustrating about the study of lawyers' … [responsibility] is the elusiveness of a widespread consensus on many important issues.