SAMPLE PAGE (c) Non payment of fees (R 3.7-3) (2) Lawyers Duties: Quick Answer Structures
may withdraw if client fails to pay retainer/disbursements/fees
II: Ethics, lawyering, and Professional Regulation: unless serious prejudice to client i.e. not last minute; need (1) Duty of Loyalty: Defence Counsel
adequate notice; limited in criminal matters (R v Cunningham). (a) Duty to put client interest before others/self & avoid conflict; (1) Purpose: to assist A and make full & answerable defence (s. 7).
(1) The Relationship: (d) Withdrawal from Criminal proceedings (R 3.7-4) maintain public confidence and trust; uphold administration of (a) Ethical duty to advance client’s case: Not an absolute duty;
May withdraw because client has not paid agreed fee or other justice; and allow access to justice (‘loyal advocacy’); (b) Duty to act with integrity (R v Lyttle);
(1) General Duty to Act: R 4.1-1: adequate cause, however, must leave sufficient time for new (b) Duty of Loyalty includes: (i) Must not mislead court;
Must make legal services available to public efficiently/ lawyer to adequately prepare (NB: Must not indicate reasons (i) Competence: R 3.1-1: lawyer who has/applies relevant (ii) Cannot case aspirations with no sufficient evidence.
conveniently; may offer services by any means subject to R to Court/Crown. This could jeopardise privilege; notice should knowledge/skills/attributes in manner appropriate to each (c) duty not to discriminate (R 6.3-5);
4.1-2; merely state lawyer is no longer acting and has withdrawn); matter, (2) Duty not to mislead court
But NB: [4] Discretion Rule: Specifies there is general right to R v Cunningham 2010, SCC [Legal aid revoked; lawyer tried (ii) Quality of service: R 3.1-1: courteous, thorough & prompt (a) Lawyer maintains ability to present clients case in best
decline representation but that this should be used ‘prudently to withdraw after client’s non-payment) Held: Court can service; competent, timely, conscientious, diligent, efficient and possible light (Legebokoff);
& not merely because of different of opinion, bad publicity, etc.’ override defence Counsel request for withdrawal as result of civil); (b) Silence can amount to deception in certain circumstances
Cf: Cab Rank Rule: obligation of barrister to accept any non-payment of fees by A; NB: Court will weigh whether (iii) Duty to avoid conflicts: R 3.4-1; (3) Defending a guilty client (R 6.3-5);
work in field they profess themselves competent to practise, contra interest of AoJ (not just admin Inconvenience) in (iv) Confidentiality: R 3.3-1; (a) Can argue:
at court at they normally appear, and at usual rates. deciding whether to allow app. Rule: Court can force counsel (v) Duty to preserve client property: R 3.5-2: related to (i) admissibility of evidence;
If declining to act: Lawyer should assist in finding adequate to continue even when not getting paid; only if timing is issue confidentiality (must take all reasonable steps to ensure (ii) form of indictment;
representation willingly and free of charge (NB: Right to decline but if counsel claims withdrawal for ethical reasons court must privacy/safekeeping of client confidential info); (iii) jurisdiction of court.
subject to R 6.3-5: must not discriminate against any person). accept & allow withdrawal. Szarfer v Chodos [Conflict: Breach of fiduciary duty after lawyer (b) Cannot argue
(2) Establishing Client-Lawyer Relationship: (4) Formalities/Manner of Withdrawal: had affair with client’s wife after defending in PI; used confidential (i) False evidence;
R 1.1-1: Client Definition: person who consults lawyer and on (a) Overarching Rule: (R 3.7-8) must try to minimise expense info for own advantage and put self in conflict.] (ii) Set up an inconsistent case;
whose behalf lawyer renders (or agrees to render) legal services and avoid prejudice to client; must do all that can reasonably be NS Bar Soc. v Richey: [Competence: Guilty of professional (iii) Assert another person committed crime.
or who having consulted a lawyer reasonably concludes that done to facilitate orderly transfer of matter to successor lawyer; misconduct & professional incompetence after repeat failure to
lawyer agreed to render legal services on his/her behalf; [1]: (b) Requirements for Withdrawal: (R 3.7-9(a)) must notify client file/disclose on time, to correspond with clients in timely manner Prosecutor
lawyer-client relationship can be established w/o formality in writing and keep adequate filing system (Incompetence definition: (1) Regulation of prosecutors
Descoteaux v Mierzwinski (1982): Lawyer/client relationship [Other obligations i.e. return documents, final accounts, co- ‘repeat absence of special required; skills include diligence & (a) Courts
commences ‘as soon as potential client has dealings with operate with subsequent lawyer etc.] efficient service, conscientiousness beyond isolated acts of poor (b) Prosecution discretion
lawyer’s office in order to obtain legal advice’; including any judgement) R given $1K fine, $30K costs & practice monitoring.] (i) Charging/screening decisions;
dealings with client re: legal advice i.e. info required in order for (2) Duty of Integrity, Courtesy, and Honesty: (ii) Plea bargaining (Nixon);
lawyer to decide whether to take case; administrative doc’s; legal (a) Integrity: R 2.1-1: Duty to practice/discharge all responsibility (iii) Calling witnesses
aid app lodged in case normally subject to privilege h/e b/c of to clients, tribunal, public, or other members of profession [Tactics and conduct in court: cannot be improper notice
crim. purpose (lied about income to get legal aid) crim/fraud honourably and with integrity (See: Sustainable Professionalism or bad faith.]
exception applied First dealings doctrine: As soon as potential Article; modern model allows for adaptation to include lawyers (i) Attorney General
client has dealings w/ lawyer/lawyer’s office in order to obtain own interests i.e. make an honest living/have work-life balance) (ii) Reviewable by a court of abuse of process only (Nixon;
legal advice = at least some duties are triggered. (i) Duty to uphold standards and reputation of legal profession; Anderson);
(3) Termination/Withdrawal: assist advancement of goals and institutions (R 2.2-2); (c) Professional conduct
General Rule: R 3.7-1: lawyer must not withdraw from (ii) ‘Good Character Requirement’: no person may be admitted (i) Law society: reviewable by court (Krieger).
representation unless good cause & reasonable notice given to or reinstated as member unless benchers satisfied person of (1) Duty
client. good character & repute and fit to become barrister & solicitor (a) Disclosure of relevant information (Stinchcombe);
Commentary: [1] ‘although clients can terminate at will, lawyers of SC (s. 19(1) LPA); (b) Minister of Justice (R 5.1-3).
don't have same freedom’; [2] General Rule: Sufficient time to (a) Courtesy/Civility: must be courteous & civil and act in good [Failure of (a) or (b) amount to professional misconduct.]
retain/instruct new counsel must be given to client. faith to all persons whom they have dealings with (R 5.1-5);
[Good practice to send letter of term (but not always [Dealings: all persons with whom they have dealings Ethics and Dispute Resolution
practicable – repeat client).] during course of practice (other lawyers/clients) (R 7.2-1).]
Exceptions: (i) Not take advantage of other lawyers’ mistakes: must Lawyers must encourage and advise client to compromise and settle
(a) Obligatory Withdrawal (R 3.7-7:): Lawyers must withdraw if: avoid sharp practice; not take advantage of or act without fair a dispute wherever possible and discourage litigation (R 3.2-1).
(i) discharged by client (R 3.7-7(a)); warning upon mistakes of other lawyer (R 7.2-2);
(ii) client persists instructing lawyer to act in contradiction of (ii) Communications: Must not send communications that are Lawyers as mediators (R 5.7-1).
ethics (R 3.7-7(b)); abusive, offensive or inconsistent professionalism; (R 7.2-4);
(iii) lawyer not competent in continuing to handle matter (R (iii) Promptness: answer communications with reasonable (1) Counselling
3.7-7(c))(Competence: R 3.) promptness & be punctual for commitments (R 7.2-5); (a) Cannot counsel illegal conduct (R 3.2-1): Sussman.
NB also: R 3.7-8: Dishonesty/Fraud by Client Organisation: if (iv) Communication received in error: lawyer receiving (i) Exceptions very limited (i.e. imminent risk of harm to child).
lawyer knows of dishonesty/fraud must advise organisation to document relating to representation of another lawyer’s client (b) Must be candid and honest in giving advice (R 3.2-2);
stop; if they refuse, then must withdraw or Conflict (R 3.4-1 duty inadvertently must promptly notify sender (R 7.2-1). (i) includes information about lawyer-client relationship.
to avoid conflict if no consent). Dore v Barreau du QC: [Disciplinary proceedings against D after (c) if lawyer discovers error that may be damaging to client (R
(b) Optional Withdrawal (R 3.7-2) D wrote derogatory letter to judge who berated him in court; 3.2-2):
Lawyers may withdraw if: serious loss of confidence between argument he violated Code of Ethics. Panel said lawyers free to (i) advise them promptly; and
client and lawyer (breakdown of relationship between client/ express themselves but letter too far. Held: Not contra s. 2(b); not (ii) recommend independent legal advice.
solicitor); private as written by D as lawyer; 21 day suspension.] (2) Negotiation
[may have good cause: i.e. deceived by client, client LS NL v Regular 2011 [Deliberate misrepresentation to opposing (a) Competence to negotiate
refuses to accept advice, client unreasonable or counsel: Held: R response deliberately intended to mislead: clear (i) Applies relevant knowledge, skills, and attributes in a matter
uncooperative, unable to obtain adequate instructions; but violation of lawyer’s duty (professional misconduct) Rule: Lawyer acing on behalf of client in negotiation (R 3.1.1(c)(v)).
should not use threat of withdrawal to force decision.] cannot deliberately mislead opposing side to benefit client.] (b) Regulation in negotiation
may withdraw if client fails to pay retainer/disbursements/fees
II: Ethics, lawyering, and Professional Regulation: unless serious prejudice to client i.e. not last minute; need (1) Duty of Loyalty: Defence Counsel
adequate notice; limited in criminal matters (R v Cunningham). (a) Duty to put client interest before others/self & avoid conflict; (1) Purpose: to assist A and make full & answerable defence (s. 7).
(1) The Relationship: (d) Withdrawal from Criminal proceedings (R 3.7-4) maintain public confidence and trust; uphold administration of (a) Ethical duty to advance client’s case: Not an absolute duty;
May withdraw because client has not paid agreed fee or other justice; and allow access to justice (‘loyal advocacy’); (b) Duty to act with integrity (R v Lyttle);
(1) General Duty to Act: R 4.1-1: adequate cause, however, must leave sufficient time for new (b) Duty of Loyalty includes: (i) Must not mislead court;
Must make legal services available to public efficiently/ lawyer to adequately prepare (NB: Must not indicate reasons (i) Competence: R 3.1-1: lawyer who has/applies relevant (ii) Cannot case aspirations with no sufficient evidence.
conveniently; may offer services by any means subject to R to Court/Crown. This could jeopardise privilege; notice should knowledge/skills/attributes in manner appropriate to each (c) duty not to discriminate (R 6.3-5);
4.1-2; merely state lawyer is no longer acting and has withdrawn); matter, (2) Duty not to mislead court
But NB: [4] Discretion Rule: Specifies there is general right to R v Cunningham 2010, SCC [Legal aid revoked; lawyer tried (ii) Quality of service: R 3.1-1: courteous, thorough & prompt (a) Lawyer maintains ability to present clients case in best
decline representation but that this should be used ‘prudently to withdraw after client’s non-payment) Held: Court can service; competent, timely, conscientious, diligent, efficient and possible light (Legebokoff);
& not merely because of different of opinion, bad publicity, etc.’ override defence Counsel request for withdrawal as result of civil); (b) Silence can amount to deception in certain circumstances
Cf: Cab Rank Rule: obligation of barrister to accept any non-payment of fees by A; NB: Court will weigh whether (iii) Duty to avoid conflicts: R 3.4-1; (3) Defending a guilty client (R 6.3-5);
work in field they profess themselves competent to practise, contra interest of AoJ (not just admin Inconvenience) in (iv) Confidentiality: R 3.3-1; (a) Can argue:
at court at they normally appear, and at usual rates. deciding whether to allow app. Rule: Court can force counsel (v) Duty to preserve client property: R 3.5-2: related to (i) admissibility of evidence;
If declining to act: Lawyer should assist in finding adequate to continue even when not getting paid; only if timing is issue confidentiality (must take all reasonable steps to ensure (ii) form of indictment;
representation willingly and free of charge (NB: Right to decline but if counsel claims withdrawal for ethical reasons court must privacy/safekeeping of client confidential info); (iii) jurisdiction of court.
subject to R 6.3-5: must not discriminate against any person). accept & allow withdrawal. Szarfer v Chodos [Conflict: Breach of fiduciary duty after lawyer (b) Cannot argue
(2) Establishing Client-Lawyer Relationship: (4) Formalities/Manner of Withdrawal: had affair with client’s wife after defending in PI; used confidential (i) False evidence;
R 1.1-1: Client Definition: person who consults lawyer and on (a) Overarching Rule: (R 3.7-8) must try to minimise expense info for own advantage and put self in conflict.] (ii) Set up an inconsistent case;
whose behalf lawyer renders (or agrees to render) legal services and avoid prejudice to client; must do all that can reasonably be NS Bar Soc. v Richey: [Competence: Guilty of professional (iii) Assert another person committed crime.
or who having consulted a lawyer reasonably concludes that done to facilitate orderly transfer of matter to successor lawyer; misconduct & professional incompetence after repeat failure to
lawyer agreed to render legal services on his/her behalf; [1]: (b) Requirements for Withdrawal: (R 3.7-9(a)) must notify client file/disclose on time, to correspond with clients in timely manner Prosecutor
lawyer-client relationship can be established w/o formality in writing and keep adequate filing system (Incompetence definition: (1) Regulation of prosecutors
Descoteaux v Mierzwinski (1982): Lawyer/client relationship [Other obligations i.e. return documents, final accounts, co- ‘repeat absence of special required; skills include diligence & (a) Courts
commences ‘as soon as potential client has dealings with operate with subsequent lawyer etc.] efficient service, conscientiousness beyond isolated acts of poor (b) Prosecution discretion
lawyer’s office in order to obtain legal advice’; including any judgement) R given $1K fine, $30K costs & practice monitoring.] (i) Charging/screening decisions;
dealings with client re: legal advice i.e. info required in order for (2) Duty of Integrity, Courtesy, and Honesty: (ii) Plea bargaining (Nixon);
lawyer to decide whether to take case; administrative doc’s; legal (a) Integrity: R 2.1-1: Duty to practice/discharge all responsibility (iii) Calling witnesses
aid app lodged in case normally subject to privilege h/e b/c of to clients, tribunal, public, or other members of profession [Tactics and conduct in court: cannot be improper notice
crim. purpose (lied about income to get legal aid) crim/fraud honourably and with integrity (See: Sustainable Professionalism or bad faith.]
exception applied First dealings doctrine: As soon as potential Article; modern model allows for adaptation to include lawyers (i) Attorney General
client has dealings w/ lawyer/lawyer’s office in order to obtain own interests i.e. make an honest living/have work-life balance) (ii) Reviewable by a court of abuse of process only (Nixon;
legal advice = at least some duties are triggered. (i) Duty to uphold standards and reputation of legal profession; Anderson);
(3) Termination/Withdrawal: assist advancement of goals and institutions (R 2.2-2); (c) Professional conduct
General Rule: R 3.7-1: lawyer must not withdraw from (ii) ‘Good Character Requirement’: no person may be admitted (i) Law society: reviewable by court (Krieger).
representation unless good cause & reasonable notice given to or reinstated as member unless benchers satisfied person of (1) Duty
client. good character & repute and fit to become barrister & solicitor (a) Disclosure of relevant information (Stinchcombe);
Commentary: [1] ‘although clients can terminate at will, lawyers of SC (s. 19(1) LPA); (b) Minister of Justice (R 5.1-3).
don't have same freedom’; [2] General Rule: Sufficient time to (a) Courtesy/Civility: must be courteous & civil and act in good [Failure of (a) or (b) amount to professional misconduct.]
retain/instruct new counsel must be given to client. faith to all persons whom they have dealings with (R 5.1-5);
[Good practice to send letter of term (but not always [Dealings: all persons with whom they have dealings Ethics and Dispute Resolution
practicable – repeat client).] during course of practice (other lawyers/clients) (R 7.2-1).]
Exceptions: (i) Not take advantage of other lawyers’ mistakes: must Lawyers must encourage and advise client to compromise and settle
(a) Obligatory Withdrawal (R 3.7-7:): Lawyers must withdraw if: avoid sharp practice; not take advantage of or act without fair a dispute wherever possible and discourage litigation (R 3.2-1).
(i) discharged by client (R 3.7-7(a)); warning upon mistakes of other lawyer (R 7.2-2);
(ii) client persists instructing lawyer to act in contradiction of (ii) Communications: Must not send communications that are Lawyers as mediators (R 5.7-1).
ethics (R 3.7-7(b)); abusive, offensive or inconsistent professionalism; (R 7.2-4);
(iii) lawyer not competent in continuing to handle matter (R (iii) Promptness: answer communications with reasonable (1) Counselling
3.7-7(c))(Competence: R 3.) promptness & be punctual for commitments (R 7.2-5); (a) Cannot counsel illegal conduct (R 3.2-1): Sussman.
NB also: R 3.7-8: Dishonesty/Fraud by Client Organisation: if (iv) Communication received in error: lawyer receiving (i) Exceptions very limited (i.e. imminent risk of harm to child).
lawyer knows of dishonesty/fraud must advise organisation to document relating to representation of another lawyer’s client (b) Must be candid and honest in giving advice (R 3.2-2);
stop; if they refuse, then must withdraw or Conflict (R 3.4-1 duty inadvertently must promptly notify sender (R 7.2-1). (i) includes information about lawyer-client relationship.
to avoid conflict if no consent). Dore v Barreau du QC: [Disciplinary proceedings against D after (c) if lawyer discovers error that may be damaging to client (R
(b) Optional Withdrawal (R 3.7-2) D wrote derogatory letter to judge who berated him in court; 3.2-2):
Lawyers may withdraw if: serious loss of confidence between argument he violated Code of Ethics. Panel said lawyers free to (i) advise them promptly; and
client and lawyer (breakdown of relationship between client/ express themselves but letter too far. Held: Not contra s. 2(b); not (ii) recommend independent legal advice.
solicitor); private as written by D as lawyer; 21 day suspension.] (2) Negotiation
[may have good cause: i.e. deceived by client, client LS NL v Regular 2011 [Deliberate misrepresentation to opposing (a) Competence to negotiate
refuses to accept advice, client unreasonable or counsel: Held: R response deliberately intended to mislead: clear (i) Applies relevant knowledge, skills, and attributes in a matter
uncooperative, unable to obtain adequate instructions; but violation of lawyer’s duty (professional misconduct) Rule: Lawyer acing on behalf of client in negotiation (R 3.1.1(c)(v)).
should not use threat of withdrawal to force decision.] cannot deliberately mislead opposing side to benefit client.] (b) Regulation in negotiation
