Why Do We do That? Commentary on Lawyers and the Law

Policy Agenda
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The lawyer should consider the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyer should ensure that the client is fully informed of the nature of the arrangement and clearly understands the scope and limitation of the services. See also rule 3. However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than mere comments with many qualifications.

The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice. Advice or services from non-lawyer members of the firm unrelated to the retainer for legal services must be provided independently of and outside the scope of the legal services retainer and from a location separate from the premises of the multi-discipline practice.

The provision of non-legal advice or services unrelated to the legal services retainer will also be subject to the constraints outlined in the Rules governing multi-discipline practices. If the lawyer can reasonably foresee undue delay in providing advice or services, the client should be so informed. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by the rule.

However, evidence of gross neglect in a particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a failure, regardless of tort liability. While damages may be awarded for negligence, incompetence can give rise to the additional sanction of disciplinary action. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service. What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.

If the lawyer can reasonably foresee undue delay in providing advice or services, the lawyer has a duty to so inform the client, so that the client can make an informed choice about his or her options, such as whether to retain new counsel. The following list, which is illustrative and not exhaustive, provides key examples of expected practices in this area:.

Whether or not a specific deadline applies, a lawyer should be prompt in prosecuting a matter, responding to communications and reporting developments to the client. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results. Firmness, without rudeness, is not a violation of the rule.

This may legitimately require firm and animated discussion with the client. The lawyer should be aware of relevant statutory and Constitutional law relating to language rights including the Canadian Charter of Rights and Freedoms , s. The lawyer should also be aware that provincial or territorial legislation may provide additional language rights, including in relation to aboriginal languages. British Columbia , SCC Under section of the Criminal Code , R. C , c. C an accused has the right to a criminal trial in either English or French.

While the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected. For example, a lawyer may advise an officer of an organization about liability insurance. In such cases the lawyer acting for an organization should be alert to the prospects of conflicts of interests and should comply with the rules about the avoidance of conflicts of interests section 3.

Even if a client has a legitimate entitlement to be paid monies, threats to take criminal or quasi-criminal action are not appropriate. However, this rule does not prevent a lawyer for an accused or potential accused from communicating with a complainant or potential complainant to obtain factual information, arrange for restitution or an apology from an accused, or defend or settle any civil matters between the accused and the complainant.

When a proposed resolution involves valuable consideration being exchanged in return for influencing the Crown or regulatory authority not to proceed with a charge or to seek a reduced sentence or penalty, the lawyer for the accused must obtain the consent of the Crown or regulatory authority prior to discussing such proposal with the complainant or potential complainant.

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Similarly, lawyers advising a complainant or potential complainant with respect to any such negotiations can do so only with the consent of the Crown or regulatory authority. If the complainant or potential complainant is vulnerable, the lawyer should take care not to take unfair or improper advantage of the circumstances.

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When communicating with an unrepresented complainant or potential complainant, it is prudent to have a witness present. Vigilance is required because the means for these, and other criminal activities, may be transactions for which lawyers commonly provide services such as: establishing, purchasing or selling business entities; arranging financing for the purchase or sale or operation of business entities; arranging financing for the purchase or sale of business assets; and purchasing and selling real estate.

These should include making reasonable attempts to verify the legal or beneficial ownership of property and business entities and who has the control of business entities, and to clarify the nature and purpose of a complex or unusual transaction where the nature and purpose are not clear. In all situations, the lawyer should ensure that the client appreciates the consequences of bringing a test case. In particular, the misconduct of publicly traded commercial and financial corporations may have serious consequences for the public at large.

This rule addresses some of the professional responsibilities of a lawyer acting for an organization, including a corporation, when he or she learns that the organization has acted, is acting, or proposes to act in a way that is dishonest, criminal or fraudulent.

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In addition to these rules, the lawyer may need to consider, for example, the rules and commentary about confidentiality section 3. Indeed, often it is the omissions of an organization, such as failing to make required disclosure or to correct inaccurate disclosures that constitute the wrongful conduct to which these rules relate. Conduct likely to result in substantial harm to the organization, as opposed to genuinely trivial misconduct by an organization, invokes these rules.

In some but not all cases, withdrawal means resigning from his or her position or relationship with the organization and not simply withdrawing from acting in the particular matter. Lawyers acting for organizations are often in a position to advise the executive officers of the organization, not only about the technicalities of the law, but also about the public relations and public policy concerns that motivated the government or regulator to enact the law. A client may be mentally capable of making some decisions but not others.

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. Accordingly, when a client is, or comes to be, under a disability that impairs his or her ability to make decisions, the lawyer will have to assess whether the impairment is minor or whether it prevents the client from giving instructions or entering into binding legal relationships.

Rule 3.3 Candor Toward The Tribunal - Comment

However, if a lawyer reasonably believes that the person has no other agent or representative and a failure to act could result in imminent and irreparable harm, the lawyer may take action on behalf of the person lacking capacity only to the extent necessary to protect the person until a legal representative can be appointed. A lawyer undertaking to so act has the same duties under these rules to the person lacking capacity as the lawyer would with any client. Whether that should be done depends on all relevant circumstances, including the importance and urgency of any matter requiring instruction.

So long as there is no lack of good faith or authority, the judgment of the legal representative should prevail. This may require reporting the misconduct to a person or institution such as a family member or the Public Trustee. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

Why is this important?

The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. See rule 3.

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The issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another lawyer in the association. Apart altogether from ethical considerations or questions of good taste, indiscreet shoptalk among lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened. For example, in court proceedings some disclosure may be necessary in a pleading or other court document.

But this implied authority to disclose places the lawyer under a duty to impress upon associates, employees, students and other lawyers engaged under contract with the lawyer or with the firm of the lawyer the importance of non-disclosure both during their employment and afterwards and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.

Similar considerations apply to confidential information given to the lawyer by a person who lacks the capacity to become a client but nevertheless requires protection. If client information is involved in those situations, the lawyer should be guided by the provisions of this rule. These situations will be extremely rare. In Smith v. Jones , [] 1 SCR at paragraph 83, the Court also observed that serious psychological harm may constitute serious bodily harm if it substantially interferes with the health or well-being of the individual.

A lawyer who believes that disclosure may be warranted should contact the Law Society for ethical advice. When practicable and permitted, a judicial order may be sought for disclosure. This type of disclosure would only be made once substantive discussions regarding the new relationship have occurred.

It ordinarily would include no more than the names of the persons and entities involved in a matter. Depending on the circumstances, it may include a brief summary of the general issues involved, and information about whether the representation has come to an end. The information should always be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship.

In some circumstances, however, because of the nature of the retainer, the transferring lawyer and the new law firm may be required to obtain the consent of clients to such disclosure or the disclosure of any further information about the clients. This is especially the case where disclosure would compromise solicitor-client privilege or otherwise prejudice the client e.

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Roger J. You've successfully reported this review. In some circumstances, however, because of the nature of the retainer, the transferring lawyer and the new law firm may be required to obtain the consent of clients to such disclosure or the disclosure of any further information about the clients. Chuck Shepherd. In case of doubt comments will be published after an email to the stated address has been answered.

The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. The rule governing conflicts of interest is founded in the duty of loyalty which is grounded in the law governing fiduciaries.

The lawyer-client relationship is a fiduciary relationship and as such, the lawyer has a duty of loyalty to the client. To maintain public confidence in the integrity of the legal profession and the administration of justice, in which lawyers play a key role, it is essential that lawyers respect the duty of loyalty.

This duty arises even if the matters are unrelated. The prohibition on acting in such circumstances except with the consent of the clients guards against such outcomes and protects the lawyer client relationship. The following examples are intended to provide illustrations of circumstances that may give rise to conflicts of interest. The examples are not exhaustive. The relationship may in some circumstances permit exploitation of the client by his or her lawyer. See rules 3. Where it is not possible to provide the client with adequate disclosure because of the confidentiality of the information of another client, the lawyer must decline to act.

Instead, it may be only one of several factors that the client will weigh when deciding whether or not to give the consent referred to in the rule. As the effectiveness of such consent is generally determined by the extent to which the client reasonably understands the material risks that the consent entails, the more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.

A general, open-ended consent will ordinarily be ineffective because it is not reasonably likely that the client will have understood the material risks involved. If the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.

Atticus Finch has been admired for decades as the ideal lawyer. He fought with courage and grace against the racist judicial system of Alabama for the underdog, a black man named Tom Robinson unjustly accused of rape. Tragically, he was ultimately unable to overcome the times, and Tom Robinson is convicted and shot while seeking escape.

His actions inspired me to be a more courageous advocate. I was particularly impressed by Atticus is willing to be the conscience of his community, to stand for justice when no one else will, to stand against the crowd of popular opinion. Ironically, I thought about Atticus and Harper Lee the evening before her death. He was wrongfully convicted of a murder which occurred in Ms. The story reminded me just how much we continue to need Atticus Finch.

Despite many changes in our country, we are still plagued with wrongfully convicted men and women, mass incarcerations, disparate incarceration of minorities and inaccessibility to competent lawyers. I am inspired that I know lots of Atticus Finches right here in Dallas. For instance, Meghan Nylin. She recently successfully tried her first asylum case in immigration court for a political activist from the Congo.

Or Melissa Weaver, who worked on an incredibly short deadline over Christmas to appeal a denial of relief under the Violence Against Women act. It was for a client who survived years of domestic violence. Our system of justice will continue to be broken as long as it is hampered by economic inequality.

Those inequalities can only be and are addressed only when lawyers step up and fight for clients whether or not they have an expectation of payment. And in that fight, Atticus continues to inspire all of us. You rarely win, but sometimes you do.