General Duties - LSS | Cans DB



General DutiesLawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession.L’s 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 w/ other Ls and demonstrate personal integrityChapter 2 – Duties counsel owes and to whom they are owedChapter 5 – Relation’p to admin of justice – duties when acting as advocateChapter 7 – Relationships with other lawyersGENERAL DUTIESAct w/ integrity, uphold the standards of the legal profession2.2-1Not give undertaking that cannot be fulfilled; Fulfill undertakings; Honour trust conditions accepted7.2-‐11 &5.1-‐6DUTY OWED TO THE STATENot aid or counsel anyone to act contrary to the law 2.1-1 (a)When prosecutor, not seek conviction, seek JUSTICE2.1-1 (b)L must encourage public respect for and improve the admin of justice; general responsibility from position in the community5.6-1and ComDUTY OWED TO THE COURTAct civilly to ensure public respect for admin of justiceGroiaAct w/ candour and fairness, Be courteous/respectful 2.1-2 (a)Not deceive court by giving false evidence or misstating facts / law2.1-2 (c)When advocating for a client / acting as advocate:Represent the C resolutely and honourably w/in limits of lawAND treat the tribunal with candour, fairness, courtesy, respect5.1-1In adversarial proceeding – raise fearlessly every issue, advance every argument and ask every question however distasteful that will help C’s case5.1-1 C1Not abuse process w/ proceedings clearly motivated by malice and brought for purpose of injuring a party5.1-2 (a)Not attempt to deceive by offering false evidence, misstating facts or law, suppressing something that ought to be disclosed5.1-2 (e)Not knowingly asserting something for which there is no reasonable basis or cannot be taken on judicial notice5.1-2 (g)Must inform court of any authority directly on point and which has not been mentioned by an opponent5.1?2 (i)Permit witness to lie; abuse or harass a witness, dissuade witness5.1-2(j-o)DUTY OWED TO THE CLIENTL-C relationship triggered by receiving retainer OR C reasonably concludes L has agreed to represent them after consultation1.1Knowing enough about a case to provide an open and undisguised opinion of the merits of the client’s case.2.1-3 (a)Avoid and disclose conflict of interest btwn L and C2.1-3 (b)Advising to avoid or end litigation where there is a fair settlement available2.1-3 (c)Treat adverse witnesses, litigants, counsel w/ courtesy2.1-3 (d)Do whatever you can, fairly and honourably, to provide C with every remedy or defence available 2.1-3 (e)Not have an interest in the subject matter of litigation2.1-3 (g)Avoid charges that are unreasonably high or low2.1-3 (i)Not to provide your own affidavit before a court when advocate except as required by law2.1-3 (k)Represent clients resolutely and honourably5.1Assisting a client to do anything or permitting the client to doing anything which is dishonest or dishonourable5.1-2(b)DUTY OWED TO OTHER LAWYERSConduct toward other L’s characterized by courtesy and good faith2.1-4 (a)Fulfill all undertakings, only give/request ones that can be fulfilled2.1-4 (b)Avoid sharp practice and take no paltry advantage of opponent who has made a slip or overlooked a technical matter2.1-4 (c)DUTY OWED TO ONESELFMaintain honour of legal profession, take other bad Ls to court 2.1-5 (a)Guard the bar against admission of those with bad character2.1-5 (b)Make legal services available to the public in efficient and convenient manner that will command respect and confidence2.1-5 (c)LSBC and Professional MisconductLSBC: public interest mandate, regulate practice of law, ensure integrity of law Functions: admissions, credentials, complaints/discipline, sanctionsProfessional misconduct: Martin … whether the facts as made out disclose a marked departure from conduct the LSBC expects of its membersConduct Unbecoming: includes 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.” LSBC v BergeCases:Re Mastop Lawyer disbarred - helping criminal organization involved in murders.Faulkner ONSC – Accused fired lawyers and acted crappy – case is about lawyers not being the “mouthpiece” of their clients – don’t take instruction on how to be LLaw Society of Upper Canada v. Besant, ONLSTA – 6 month suspension for failing to adequately prepare for two clients criminal trials – prof misconduct foundR v Sidhu – Lawyer convicted of trafficking for bringing meth into remand centre for client – said didn’t know what it was. Wanted release. Granted -he was having cancer treat’t and letting him out wouldn’t bring admin of justice into disrepute. Canada v Fed of Law Societies: Bar must be independent and free from State interference with the delivery of services to individual citizens. Public confidence includes protection of SCP however does not protect L from illegal activities.Groia v Law Society of Upper Canada: Law society can discipline members for breaching prof’l obligation of civility. Law society has role to ensure professional conduct, prof’l standards, law society not reliant on judge to assess profession’lsm Self-governing profession requires lawyers to be subject to governing body rules.Duty to Report other Lawyers Must report: abandonment of practice, criminal activity related to practice, where clients likely to be prejudiced, mental instability, shortage of trust money, breach of undertaking, conduct that questions a lawyer’s honesty, trust, competence as LS 3 of LPA serve public interest over ownCOMPETENCE AND QUALITY OF SERVICECompetence: Lawyers need to be a “reasonable, ordinarily competent, prudent solicitor” Central Trust Co v RafuseEthical duties to client triggered when retained and L agrees, or when C reasonably concludes the L has agreedCOMPETENCECompetent L has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter - know legal principles, investigate facts, implement approp action, communicate to client, perform functions conscientiously, manage practice effectively, pursue professional development etc.3.1-1Must perform all legal services to the standard of a competent L3.1-2Law society disciplinary action: requires patterns of incompetence or gross negligence3.1-2 Com 15QUALITY OF SERVICEHonesty and candour when advising a client3.2-2Encourage settlement when possible, use ADR if possible (Com 1)3.2-4Not engage in activity that will assist in dishonesty, crime, fraudComm 1 Be on guard against being the tool of unscrupulous C3.2-7Minor or disabled C: Maintain normal S-C relationship** see commentary about representing minor or disabled3.2-9CHOICE OF CLIENTNot act against former Client in new proceedings3.4-10TERMINATING CLIENT RELATIONSHIPMust not withdraw from representing a C except for good cause on reasonable grounds3.7-1OPTIONAL WITHDRAWAL – Loss of confidence btwn client and L3.7-2Non payment of fees-allowed to withdraw after reasonable notice3.7-3Criminal: Must ensure has another L before withdrawing and that L has had time to prepare3.7-4OBLIGATORY WITHDRAWAL – Client is deceptive, L incompetent, Client fires L3.7-7Lawyer must give reasonable notice, must give written reasons, and give all relevant information to client3.7-8GOOD CHARACTER OF LAWYERS"Let justice be done though the heavens fall”Justice must be realized regardless of consequences.Character “That combination of qualities or features distinguishing one person from another. Good character connotes moral or ethical strength…an amalgam of various attributes and traits which include, among others, integrity, candour, empathy, and honesty.” PreyraEvidence of bad character: applicant must show repentance and rehabilitationPurpose of assessing character: Public protection, maintain ethical standards, maintain public confidence in legal systemCHARACTERNo person may be enrolled as an articled student, called and admitted, or reinstated as a member unless the benchers are satisfied that he person is of good character and repute and is fit to become a barrister and solicitor of the Supreme Court.LPA 19(1)Cases: Kay v Law Society of BC – there are subjective and objective elements to assessing good character including commitment to speak truth, resolve to place C’s interest first, never expose C to risk of loss, trustworthy handling of C money. Lawyer must prove rehabilitation, and be ethically equipped to not break trust.Levenson v Law Society of Upper Canada – 10 Principles to consider when considering “Watt Test” to see if L has been rehabilitated (see notes): need corroborating evidence, must be genuine and enduring, burden on applicant to prove, licensure must not be determinantal to justice system or integrity of bar.Stuart Edward Hendin v Law Society of UC – Good character includes appreciation of diff btwn right and wrong, moral fibre to do whatis right, courage to uphold the law. Character is how an individual behaves when no one is watching. Duty of candour required in application to licensing body.Re Sarai –Objective test – would a right-thinking member of the community find the person to be of good repute? “Strength of character” vs “character defect”Re Sanandaji – Lawyer had several charges, excessive speed, assault, refusing to provide breath sample – LSBC found him to be of good character, no sanctionsRe Tedham – Articled student application, alcoholic, hx criminal offences and driving charges. Good academic hx. Law Society admitted him. ROLE OF DEFENCE COUNSELEthical duty: Fearlessly raise every issue, advance every argument, and ask every question, no matter how distasteful – must represent the C resolutely. 5.1-1 C1Full and Proper Defence: When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted… may properly rely on any evidence or defences not known to be false or fraudulent 5.1-1 C9 When L believes C is guilty: 1) avoid forming opinion re guilt – that is for judge 2) do not mislead court 2.1-2 by suggesting another person committed the crime or call false evidence 3) Can still test evidence before court 4) May withdrawDefence disclose to Crown: 1) alibi evidence, 2) notice of a psychiatric defence, and 3) any expert opinion evidenceR v Murray: Defence can take possession and conceal the real evidence during pre-trial period if the defence honestly believes that it has exculpatory uses at trial and if counsel intends to so use it at trial BUT cannot take possession of real evidence and conceal it if counsel realizes that the evidence is inculpatory. PHYSICAL EVIDENCEL must not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence so as to obstruct or attempt to obstruct the course of justice5.1-2.1??Rule does not apply when evidence establishes innocence of client5.1-2.1 C 2Lawyer should immediately deliver incriminating physical evidence to authorities, disclose existence to prosecutor, or return to source 5.1-2.1 C 3.1Lawyer not obligated to assist authorities in collecting evidence5.1-2.1 C 5A lawyer is never required to take or keep possession of incriminating physical evidence or to disclose its mere existence5.1-2.1 C 7GUILTY PLEASL can discuss plea with crown before charge is laid 5.1-7Rule does not apply when evidence establishes innocence of client5.1-2.1 C 2Lawyer should immediately deliver incriminating physical evidence to authorities, disclose existence to prosecutor, or return to source 5.1-2.1 C 3.1Lawyer not obligated to assist authorities in collecting evidence5.1-2.1 C 5A lawyer is never required to take or keep possession of incriminating physical evidence or to disclose its mere existence5.1-2.1 C 7ROLE OF CROWN COUNSEL Critical role: Crown plays critical role in justice system, has considerable influence. Advocates but not meant to “win at any cost”. Need independence: Must be free of political/ social/ police interference. Seek justice in public interest. Duties: Quasi-judicial – decide about charges, what to lay / stay charges. 1) Legal advice to police 2) Charge approval 3) Plea bargains 4) Ending prosecution 4) Calling witnesses 5) determining sentence to seek5.1-3 Duty as a Prosecutor: when acting as a prosecutor, a laywer must act for the public and the admin of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect Commentary [1]: when engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits.Cases: Boucher v The Queen - Prosecutor was improper in address to jury due to including personal opinion re accused guilt – SCC held must be a new trial. Jordan case – Crown took too long to prosecute – stay of proceedings resulted. Nelles v Ontario – tort of malicious prosecution elements defined. Crown does not have absolute immunity for all of their actions if malicious.CONFLICT OF INTERESTDefinition Conflict of interest exists when there is a substantial risk that L’s loyalty to C would be adversely affected by L’s own interest or duties to another client, a former client, or a third person. Must be real genuine risk to prejudice C’s interestCONFIDENTIALITYDuty to avoid conflict of interest3.4.1Joint retainers - Must get written consent from clients 3.4.2, 3.4.5May not act against a former client unless they consent3.4.10Cases:R v Kim – Lawyer defending 2 co-accused, accused pled guilty then wanted to withdraw due to L conflict of interest. Found to be in conflict, since beginning of joint rep, L was unable to advise C or deal with co-accused, shouldn’t be jointR v Sundstom – Lawyer acting for spouses, cannabis bust, wife pled guilty then withdrrw plea – Lawyer found not in conflict bc as defence counsel was able to recommend all options w/accused and wife made her own decision re guilty pleaR v Le – Lawyer acting for couple on cannabis bust, negotiated plea. Man tried to withdraw plea – Lawyer found not to be in conflict bc evidence was specific and supported by documentation on file. Gave sound advice to accused parties.PRIVILEGE AND CONFIDENTIALITYTwo distinct but related concepts that are the foundation of L-C relationshipsConfidentiality Ethical duty. Obligation imposed by Law Society. Survives the relationship ending. Includes ALL information acquired during prof’l relationship.In limited but important circumstances, protection of client confidences subjected to mandated disclosures for greater public interest.Privilege: Legal duty. Obligation imposed by law. Includes private communication btwn L and C for the purposes of providing legal advice. Protects info from disclosure in court, even where that info is relevant and probative. Rationale: value in open communication btwn L-C. Cost: Hinders laws truth-seeking function.CONFIDENTIALITYMust keep all info concerning C’s business affairs in confidence unless (a) expressly authorized by C (b) required by law (c) required to deliver info to Law Society or (d) otherwise permitted3.3-1Must not use/disclose information w/o consent of C3.3-2L should guard, and not divulge or use for personal benefit, C’s secrets or confidences.2.1-3 (g)Don’t disclose that you’ve been retained by a C3.3-1 C5Duty of confidentiality continues after L done acting for C3.3-1 C3Duty of confidentiality owed to anyone L gives advice to, whether or not they become a client – L-C relt’ship can be informal3.3-1 C4Can disclose someone is a client if: accused of negligence/crime, in order to collect fees, or if seeking advice from other lawyers3.3-4,5,6SOLICITOR-CLIENT PRIVILEGEWigmore test: Communcation 1) btwn L-C, 2) for purpose of legal advice, 3) expectation of confidentiality WigmoreL who is required to produce a document or provide information that is privileged must claim S-C P unless C waives privilege3.3-2.1Public safety exception: L may disclose confidential info, only what is required, when L believes imminent risk of death or harm3.3-3Exceptions to SCP 1) Facilitate crime 2) Public Safety/ Harm 3) Innocence at stakeIf communications made for purpose of crime, C loses privilege protection.Cases:Smith v Jones – 3 factors for exceptions to SCP 1) is there a clear risk to an identifiable person or group of persons? 2) is there a risk of serious bodily harm or death? 3) is the danger imminent? If yes Set aside S-C PR v McClure – Innocence at Risk test (see notes) when innocence at stake there is an exception to confidentialityCanada v Federation of Law Societies – An Act was challenged as not applying to lawyers as it would threaten SCP by giving govt power to read documents btwn L-C. RETAINERS, FEES, AND TRUST MONEYLAWYERS FEESDefinitions and interpretation of lawyers fees in LPALPA s 64L can enter agreement for legal services with any person that requires $ to be paid. Cannot make agmt re: no negligence of LLPA s 65L can make agreement for contingency fees – cannot exceed limits established by rules. If void, L can charge usual amountLPA s 663.6-2Contingency agmt not allowed on family law casesLPA s 67Registrar can void contingency agmt if unfair/unreasonableLPA s 68Lawyer must deliver a bill, signed, with description of service (also for statement of account)LPA s 693.6-3Registrar can review bills and order remediesLPA s71-73Can only charge reasonable fees that are disclosed in timely way3.6-1Limited scope retainer Before taking, must be clear about nature extent and scope of services to be provided to C in writing3.2-1.1Joint retainer If acting for 2+ C’s must divide fees equitably3.6-4 Non-Payment L may withdraw if C doesn’t pay w/in reasonable time3.7-3Tracking trust $: L must record, and report promptly to C receipt of any moneys or trust property. L must use C’s moneys and trust property only as authorized, and not commingle it with that of the lawyer.TRUST ACCOUNTSL is personally responsible for all client funds and property in trust (responsibility can be fulfilled by the firm)LSR 3-54L must make reasonable efforts to maintain list of fiduciary property they hold for clientsLSR 3-55Must deposit funds into trust account as soon as practicableLSR 3-58Max $7500 cash in respect of any 1 client matter or transactionLSR 3-59 (3)Must not withdraw trust funds unless expressly authorized in lawLSR 3-64Fees paid out of trust account must be tracked and recorded properly, and have a bill prepared per billing rulesLSR 3-65L must keep accurate accounting records of trust accounts, general accounts, cash transactions, billing records2.1-3LSR 3-67 to 3-75Cases:Nathanson, Schachter and Thompson v Inmet Mining – Firm charged a premium fee after did a good job and won big award – Court found breached duty to advise client fully and fairly regarding terms of retainer. Estopped from overcharging. Retainer is a K and parties are bound to its terms.Sass v Law Society – L held money in trust, was closing practice and moved account around. Found to have breached the LPA for professional misconduct bc of management of trust funds. ETHICS AND THE JUDICIARYJudicial independence and impartiality are hallmarks of the legal system. Judicial Independence Enshrined in Charter as guarantee of independent and impartial tribunal. Independ. Is “the cornerstone, a necessary prereq for impa’altyIndependence Factors: Judges enjoy security of tenure, institutional independence, legal immunity, oversight by independent judicial body.Diligence Judges should be diligent in the performance of their dutiesIntegrity Judges should strive to conduct themselves with integrity so as to sustain and enhance public confidence in the judiciary. Conduct should be above reproach, so that the view of a reasonable fair-minded informed person is they are not biased. Must be free of bias, actual or perceived. Cdn Judicial Council Code of ConductJudges must exercise their judicial functions independently and free of extraneous influence.Judges must firmly reject any attempt to influence their decisions in any matter before the Court outside the proper process of the Court. Judges should encourage and uphold arrangements and safeguards to maintain and enhance the institutional and operational independence of the judiciary. Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence. Case: GIROUARD – The CJC is NOT immune from JR and conducted themselves wrongly in how they dealt with (excused) Girouard’s misconduct buying drugs.It is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. CLIENT CANT PAY YOUCODE 3.7-3 Non-payment of fees Commentary [1] - [3]: When the lawyer withdraws because the client has not paid the lawyer’s fee, the lawyer should ensure that there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for a hearing or oral trial...3.7-5 Withdrawal from Criminal ProceedingsNOTE: Code 2.1-3(i) Duty owed to the client - The Client’s ability to pay cannot justify a charge in excess of the value of the service, though it may require a reduction or waiver of the fee3.3-5: A lawyer may disclose confidential information in order to establish or collect the lawyers’ fees, but must not disclose more information than is required. Client might hurt someoneSmith v Jones Determining when Public Safety outweighs Solicitor-Client Privilege3 FACTORS to be considered: is there a clear risk to an identifiable person or group of persons? Is there a risk of serious bodily harm or death? Is the danger imminent?General Rule: if the privilege is to be set aside the court must find that there is an imminent risk of serious bodily harm or death to an identifiable person or groupClient wants to lie on standCODE 3.2-7 Dishonesty, fraud by client2.1 Canon → lawyer’s duty is to serve the cause of justice5.1-1 Advocacy → Commentary [1] Even though lawyer is zealous advocate, “must discharge this duty by fair and honourable means, without illegality… with candour, fairness, courtesy and respect.” ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download