LSUC Prof Resp Course - Questions

8/17/2019 LSUC Prof Resp Course - Questions

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Professional Responsibility and Practice Course – Written

ExercisesModule 1: Professional Responsibility........................................................................................................3

Introduction to the Rules:........................................................................................................................3

A. Test Your Professional Responsibility IQ:...................................................................................3

B. onfidentiality or lient Pri!ile"e#...........................................................................................1$

Identifyin" and A!oidin" onflicts of Interest:......................................................................................1%

A. &o' to Resol!e an (thical Issue................................................................................................1%

B. )illia*s ase +tudy..................................................................................................................1%

. True or ,alse: onflicts of Interest.............................................................................................%$

Test Yourself..........................................................................................................................................%-

A. Identifyin" the Issues................................................................................................................. %-

Module %: lient o**unications............................................................................................................3%

onfidentiality and +olicitorlient Pri!ile"e........................................................................................3%

A. onfidentiality ase +tudy........................................................................................................3%

I*pro!in" your )ritten o**unication +/ills.....................................................................................30

A. +upple*entary )ritin" (ercises..............................................................................................30

Test Yourself..........................................................................................................................................2

A. Identify the Issues......................................................................................................................2

Module 3 4 Mana"in" the lient ,ile........................................................................................................-

Introduction........................................................................................................................................... -A. Test Your ,ile Mana"e*ent IQ..................................................................................................-

5atherin" the ,acts................................................................................................................................ 0

A. ase ,ile: ,loyd !. )hite &ouse +idin"............................................................................. .......0

B. 5ood ,acts6Bad ,acts Analysis:.................................................................................................-$

Floyd Case: Good Facts...................................................................................................................-$

Floyd Case: Bad Facts.....................................................................................................................-$

7e!elopin" a Theory of the ase...........................................................................................................-1

A. Theory of the ase 4 &o' and )hy 7e!eloped........................................................................-1

Theory of the ase &o' and )hy 7e!eloped# An 8!er!ie'...........................................................-1

B. hec/list: 7e!elopin" the Theory of the ase...........................................................................9%

. hec/list: Testin" the Theory of the ase..................................................................................9%

7. The I*portance of )or/in" Your Theory into Your Pleadin"s................................................ ..93

(. Theory of the ase and Its se in (a*ination for 7isco!ery.......................................... ........;;


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A. onflict Analysis............................................................................................................... ......1$1

onflict Analysis A ontinuu* of 7ispute Resolution Processes....................................................1$1

=A7R: A onceptual 8!er!ie'> Relatin" 7isputes to Process.......................................................1$%

B. 7esi"n (le*ents and hoices..................................................................................................1$2

.


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Module 1: Professional Responsibility

Introduction to the Rules:

A. Test Your Professional Responsibility IQ:

Question 1 of 10

Da'yers retained by an or"aniEation act for the or"aniEation e!en thou"h they recei!e theirinstructions fro* indi!iduals.

Option: TrueOption: ,alseOption: 7epends

Explanation:

Rule %.$%?1.1:


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As stated in the o**entary to subrule %.$2?3F =A dual role *ay raise a conflict because it *ayaffect the la'yerGs independent Hud"e*ent and fiduciary obli"ations in either or both rolesF it*ay obscure le"al ad!ice fro* business and practical ad!iceF it *ay in!alidate the protection ofla'yer and client pri!ile"eF and it has the potential of disCualifyin" the la'yer or the la' fir*fro* actin" for the or"aniEation.>

Da'yers should also be *indful of Rule -.$2 'hich addresses outside interests and the practiceof la'. This Rule reCuires la'yers 'ho en"a"e in another professionF occupation or business atthe sa*e ti*e as practisin" la' to ensure that the outside interest?s does not HeopardiEe thela'yerGs professional inte"rityF independence or co*petence.

Question 3 of 10

Your client has been co*plainin" about opposin" counselF Mr. . Today your client states that:

=I a* "oin" to "et that creep Mr. in court to*orro'.> As this is confidential client infor*ationFyou cannot disclose it.


Explanation:

+ubrule %.$3?1 states that: =A la'yer at all ti*es shall hold in strict confidence all infor*ationconcernin" the business and affairs of the client acCuired in the course of the professionalrelationship and shall not di!ul"e any such infor*ation unless epressly or i*pliedly authoriEed by the client or reCuired by la' to do so.>

There areF ho'e!erF so*e eceptional circu*stances 'here disclosure 'ithout the clientGs per*ission *ay be 'arranted. +ubrule %.$3?3 pro!ides that 'here a la'yer belie!es onreasonable "rounds that there is an i**inent ris/ to an identifiable person of death or serious bodily har*F includin" serious psycholo"ical har* that substantially interferes 'ith health or'ellbein"F the la'yer *ay disclose confidential infor*ationF pursuant to Hudicial order 'here practicableF 'here it is necessary to do so in order to pre!ent the death or har*. The la'yer *ustnot disclose *ore infor*ation than is reCuired.

8n the facts in Cuestion 3F 'here the client is threatenin" an identifiable personF Mr. F thela'yerF should assess the clientGs de*eanour in li"ht of his or her /no'led"e of the clientGshistory and then deter*ine 'hether the circu*stances *eet the criteria for Hustified disclosureunder the Rules. As the threat *a/es reference to the courtF the la'yer should consider subrule2.$-?3 relatin" to the security of court facilities. This subrule states that: =A la'yer 'ho hasreasonable "rounds for belie!in" that a dan"erous situation is li/ely to de!elop at a court facilityshall infor* the local police and "i!e particulars.>

2


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Question 4 of 10

7ifferent la'yers in the sa*e fir* cannot act for both the transferor and the transferee in a

transfer of title to real property.


Explanation:

+ubrule %.$2.1?% allo's different la'yers in the sa*e fir* to represent the transferor and thetransferee in a transfer of title to real property so long as there is no !iolation of the Rule %.$2dealin" 'ith conflicts of interest. If there is no conflict of interestF and if prudent to do soF then

the la'yers in the sa*e fir* *ay act pro!ided that they co*ply 'ith the Hoint retainer rules setout in subrules %.$2?-?1$.

Be a'are that the t'ola'yer reCuire*ent in Rule %.$2.1 prohibits an indi!idual la'yer fro*representin" both the transferor and the transferee in a transfer of title to real property unless oneof the eceptionsF set out in subrule %.$2.1?3 appliesF and there is no !iolation of Rule %.$2?conflicts of interest.

Question 5 of 10

I act re"ularly for @i* in business transactions. @i* 'as Hust *arried and he and his 'ifeF @anetF'ant *e to act for both of the* in a business deal. This 'ill be a Hoint retainer. 5i!en that @anetalready /no's that I ha!e a continuin" professional relationship 'ith @i*. I donJt need toreco**end to @anet that she obtain independent le"al ad!ice.


Explanation:

+ubrule %.$2?9 reCuires thatF 'ith the eception of lendin" clients as defined in subrule%.$2?;.1F 'here a la'yer has a continuin" relationship 'ith a client for 'ho* ?she actsre"ularlyF the la'yer *ust 4 before acceptin" the Hoint retainer in a *atter or transaction 4 ad!isethe other client of the continuin" relationship and reco**end that the client obtain independentle"al ad!ice about the Hoint retainer.


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Question of 10

onsent under the Rules *ust al'ays be recorded in 'ritin".


Explanation:

1.$% defines =consent> as follo's:

a. A consent in 'ritin"F pro!ided that 'here *ore than one person consentsF each *ay si"na separate docu*ent recordin" his or her consentF or

b. An oral consentF pro!ided that each person "i!in" the oral consent recei!es a separateletter recordin" his or her consent.

Question ! of 10

You are a la'yer in financial difficulty because one of your children reCuires costly *edication.You ha!e a 'ealthy clientF Mrs. YF 'ho offers to lend you the *oney to pay for the *edication.Mrs. Y is not related to you. 5i!en these difficult circu*stances and "i!en that your clientconsentsF you *ay borro' *oney fro* her in order to pay for the *edication.


Explanation:

+ubrule %.$-?2 prohibits la'yers fro* borro'in" *oney fro* a client unless

a. The client is a lendin" institutionF financial institutionF insurance co*panyF trust co*panyor any si*ilar corporation 'hose business includes lendin" *oney to the clientF or

b. The client is a related person as defined in the Inco*e Ta Act and the la'yer is able todischar"e the onus of pro!in" that the clientGs interests 'ere fully protected by the natureof the case and by independent le"al ad!ice or independent le"al representation.

-


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Question " of 10

You represent a difficult client in a personal inHury *atter. The trial is in a *onth. Today theclient has phoned you and tells you that he *ay ha!e *isled opposin" counselF Mr. KF as to the

etent of his inHuries. You *ust 'ithdra' fro* the case.


Explanation:

The clientla'yer relationship *ay be ter*inated at 'ill by the client. The la'yerF ho'e!erF does

not enHoy the sa*e freedo* of action. +ubrule %.$0?1 states that: =A la'yer shall not 'ithdra'fro* representation of a client ecept for "ood cause and upon notice to the client appropriate inthe circu*stances.> There are t'o cate"ories of 'ithdra'al: *andatory and optional.)ithdra'al *ust al'ays beF re"ardless of cate"oryF for "ood cause and upon notice that isappropriate in the circu*stances.

Be a'are that in cri*inal proceedin"s there are specific rules "o!ernin" 'ithdra'al ?see subrules%.$0?3 throu"h ?- inclusi!e.

#andato$y %it&d$a'al ( )u*$ule 2+0,-!.

A la'yer has a duty to 'ithdra' if:

a. dischar"ed by the clientF

b. the la'yer is instructed by the client to do so*ethin" inconsistent 'ith the la'yerGs dutyto the tribunal andF follo'in" eplanationF the client persists in such instructionsF

c. the client is "uilty of dishonourable conduct in the proceedin"s or is ta/in" a positionsolely to harass or *aliciously inHure anotherF

d. it beco*es clear that the la'yerGs continued e*ploy*ent 'ill lead to a breach of theserulesF

e. the la'yer is reCuired to 'ithdra' due to dishonestyF fraud etc. 'hen client is anor"aniEation ?see subrules %.$%?.1 and ?.%

f. the la'yer is not co*petent to handle the *atter.

Optional ( )u*$ule 2+0,-2.

9


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In so*e cases 'here there has been a serious loss of confidence bet'een the client and thela'yerF the la'yer *ay 'ithdra'F but there is no duty to do so.

8n the facts in Cuestion ;F the la'yer 'ill need to eplore 'ith the client Hust 'hat 'as *eant byhis re*ar/ about *isleadin" opposin" counselF Mr. K. &o' did he *islead Mr. K# )as this

intentional or inad!ertent# Is the client prepared to correct any *isunderstandin"F if Mr. K 'as*isled inad!ertently# 7oes the client intend to *islead the court# If soF does the clientunderstand the conseCuences of such a course of action# If the client is not prepared to clarifyany *isunderstandin"s and 'ishes to continue to *islead Mr. KF the clientGs la'yer cannot assistin or encoura"e any dishonesty ?subrule %.$%?. The la'yer 'ill then need to assess 'hetherthere *ay be a *andatory duty to 'ithdra' orF absent any *andatory dutyF 'hether there has been a serious loss of confidence bet'een counsel and the client that *ay 'arrant 'ithdra'al.

8n the issue of appropriate noticeF the o**entary to subrule %.$0?1 statesF =


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Question 10 of 10

8pposin" counsel has *ade a !ery reasonable reCuest for an adHourn*ent in a ci!il suitF but your client opposes this reCuest. You ha!e no choice but to follo' your clientJs instructions.


Da'yers *ust balance the duties they o'e to their clients 'ith the duties that they o'e to thead*inistration of HusticeF the Da' +ocietyF and other la'yers. As stated in subrule -.$3?%F =A

la'yer shall a"ree to reasonable reCuests concernin" trial datesF adHourn*entsF the 'ai!er offor*al procedural for*alities and si*ilar *atters that do not preHudice the ri"hts of the client.>

0


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B. onfidentiality or lient Pri!ile"e#%&at is t&e diffe$ence *et'een confidentiality and solicito$/client p$iilege

The ethical duty of confidentiality *ust be distin"uished fro* the le"al doctrine of solicitorclient pri!ile"e and fro* the fiduciary duty of la'yers to protect client confidential infor*ation.The le"al doctrine of solicitorclient pri!ile"e is an e!identiary ruleL the ethical duty ofconfidentiality is a professional conduct rule that reflects the eCuitable fiduciary duty to protectclient confidences. The focus here is on the difference bet'een the ethical duty of confidentialityand the le"al doctrine of solicitorclient pri!ile"e.

The Ethical Duty of Confidentiality

The ethical or professional conduct duty of confidentiality is *uch broader and includesinfor*ation co!ered by the doctrine of solicitorclient pri!ile"e. It co!ers all infor*ationobtained by a la'yer durin" the course of and in furtherance of the retainerF 'hether directlyfro* the client or fro* so*e other source. +pecificallyF the o**entary to +ubrule %.$3?1 ofthe Rules of Professional Conduct statesF =This rule *ust be distin"uished fro* the e!identiaryrule of la'yer and client pri!ile"e concernin" oral or docu*entary co**unications passin" bet'een the client and the la'yer. The ethical rule is 'ider and applies 'ithout re"ard to thenature or source of the infor*ation or the fact that others *ay share the /no'led"e.>

The ethical duty of confidentiality prohibits the la'yer fro* re!ealin" the infor*ation ?ecept incertain defined circu*stances in any foru*. It sur!i!es the de*ise of the la'yer6client retainerand the de*ise of the client.

The ethical duty of confidentiality is broader than the e!identiary rule of solicitorclient pri!ile"ein three 'ays. ,irstF it reCuires la'yers to *aintain infor*ation in confidenceF 'hereas pri!ile"e*erely pre!ents the introduction of infor*ation into e!idence. +econdF it applies not only toconfidential co**unications bet'een clients and la'yers that are echan"ed for the purpose ofobtainin" le"al ad!iceF but also to all infor*ation concernin" the clientsJ affairs acCuired fro*any source durin" the course of the professional relationship. ThirdF it applies e!en thou"hothers *ay share the la'yerJs /no'led"e. ?MacenEieF 5a!inF Lawyers and Ethics: Professional Responsibility and Discipline ?Toronto: ars'ellF 1003 at 33.

Privilege

Pri!ile"e is the le"al ri"ht of an indi!idual to refuse to disclose or 'ithhold rele!ant infor*ationfro* a courtF tribunalF and fro* in!esti"ationsF includin" la' enforce*ent officials. Pri!ile"e isan e!identiary rule of la' that prohibits the disclosure of certain co**unications.

There are se!eral different types of pri!ile"ed infor*ation. Pri!ile"e is afforded toco**unications

• bet'een solicitor and a client to obtain le"al ad!ice 4 solicitorclient pri!ile"eF

1$


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• *ade for the do*inant purpose of anticipated or pendin" liti"ation 4 the liti"ation

pri!ile"eF and

• *ade 'ithout preHudice to settle disputes.

This list is not ehausti!e. The rationales for the !arious for*s of pri!ile"ed infor*ation differs.

Solicitor-Client Privilege

Pri!ile"ed infor*ationF infor*ation or co**unications protected in la'F is si*ply a subset of=all infor*ation concernin" the business and affairs of the client acCuired in the course of the professional relationship.> ?MacenEieF 5a!inF abo!e All pri!ile"ed infor*ation is alsoconfidential infor*ation.

Accordin"lyF a la'yer is under an ethical and le"al obli"ation to protect pri!ile"ed infor*ation.In contrastF a la'yer *ay be under an ethicalF but not a le"al obli"ation to protect otherinfor*ation 4 infor*ation that is not co!ered by pri!ile"e but falls under a*bit of Rule %.$3.

11


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Identifying and Aoiding Con!icts of Interest:

A. &o' to Resol!e an (thical Issue

The Da' +ociety reco**ends a *odel approach for resol!in" ethical dile**as. sin" yourunderstandin" of ho' to analyEe ethical issuesF ran/ the follo'in" steps in the best order:

ans'e$:

1. 7 Identify the !arious ethical issues raised in the fact scenario.

%. onsider any "o!ernin" la' that *ay bear upon the proble*.

3. 5 Doo/ to the specific rule and co**entary in the Rules of Professional Conduct .

2. ( Apply the facts to the rule to deter*ine your responsibilities and 'hether they are*andatory or per*issi!e.

. B onsider ho' to balance any co*petin" duties.

-. , If there is any uncertaintyF

o hec/ the Professional 7e!elop*ent and o*petence 'eb pa"e on the Da'

+ocietyGs 'ebsite.

o onsult the Practice Mana"e*ent &elpline or a senior practitioner 'ho practises

in the rele!ant area of la'.

9. A eep a detailed 'ritten record.

B. )illia*s ase +tudy

You ha!e been as/ed to assist a partner in your fir* to ad!ise incent Ray. The *e*o fro* the partner and the su**ary of facts fro* the client appear belo'.

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1%


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#eo ega$ding 6incent ay

To: Associate Da'yer

,ro*: Partner

7ate: @une %$$0

Mr. Ray consulted *e about three *onths a"o about his for*er la'yerF @ay )illia*s. As IrecallF I told hi* that I could find no e!idence of *alpractice or *isconduct. Apparently Ray hasne' infor*ation and 'ants us to ad!ise hi*. &is *e*o settin" out the facts is attached. Pleasere!ie' the *e*o and be prepared to discuss it 'ith *e.

NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN

)ua$y of Facts

To: Da'yer

,ro*: incent Ray

My na*e is incent Ray. I need your help re"ardin" the actions of *y pre!ious la'yerF @.)illia*s. &ere is a su**ary of the facts:

I used to be one of four "eneral partners 'ith 'hat is no' AB Inc. ?=AB>F an in!est*ent ban/in"F securities and tradin" bro/era"e fir*. The other partners 'ere


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disco!ery> to find out *ore about the public offerin" fro* the la'yers 'or/in" on the *atter forAB. In the reportin" letter he sent *e after the *eetin"F Mr. 5reen indicated that Ms. @onesF thela'yer 'ho had been consulted by AB for the public offerin"F had tried to persuade Mr. 5reenthat there 'as no *erit to *y clai*. Mr. 5reenGs letter also set out the details about Ms. @onesGin!ol!e*ent 'ith Perry and AB durin" the ti*e AB 'as restructured to "o public.

nfortunatelyF Mr. 5reen suffered a stro/e shortly after the *eetin" and so I 'as forced to hirene' counsel.

I then *et 'ith Ms. Bater fro* )illia*s Da'yers. At our first *eetin"F she said she 'as "oin"on *aternity lea!e in a fe' *onthsF so she referred *e to her partnerF Mr. )illia*s.

Mr. )illia*s and I *et in @anuary %$$9. )e had a t'o and a half hour *eetin" 'here I told hi* pretty *uch e!erythin" I ha!e outlined. I "a!e hi* a copy of Mr. 5reenGs reportin" letter. Iad*it that Mr. )illia*s 'arned *e that *y chances of success 'ere *ini*al. &e didnGt thin/that I had a particularly stron" case. Mr. 5reen that she 'ould"i!e e!idence on behalf of *y for*er partners if the *atter 'ent to trial. Althou"h Mr. )illia*sas/ed her so*e CuestionsF he didnGt crossea*ine her !ery a""ressi!ely at all.


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I belie!e that I no' ha!e so*e pretty stron" e!idence that Mr. )illia*s =*essed up> and 'ouldli/e to discuss this further 'ith you.

Question 1 of 10

)hat does Ray thin/ his la'yerF )illia*sF has done 'ron"#

OAns'er: Ray belie!es that )illia*s *ay ha!e not crossea*ined @ones as a""ressi!ely as he 'ouldha!e if )illia*s had not /no'n @ones throu"h pre!ious e*ploy*ent at the @ones fir*.

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Question 2 of 10

Identify the specific Rule(s) of Professional Conduct that *ay for* the basis of RayGsco*plaint. (plain ho' you 'ould ar"ue on behalf of Ray that the Rule?s 'ere breached.

OAns'er:

• Ray is alle"in" that )illia*s is in a conflict of interest.

• lause %.$2?1?a: conflict of interest *eans an interest that 'ould li/ely affect ad!ersely

a la'yerGs Hud"*ent on behalf of or loyalty to a client.

•lause %.$2?1?b: 'ould not apply as there is no other client in!ol!ed and therefore noother clientGs interest to prefer.

• If there is a conflictF it 'ill arise as a result of the pre!ious e*ploy*ent relationship

bet'een )illia*s and @ones.

O


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OAns'er:

• 7isclosed his relationship 'ith Ms. @ones to Ray.

• 7eclined to act for Ray if he felt that his pre!ious relationship 'ith Ms. @ones 'ould be

li/ely to interfere 'ith his ability to effecti!ely represent his client.

O


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o lause 2.$1?1 O)hen actin" as an ad!ocateF a la'yer shall represent the client

resolutely and honourably 'ithin the li*its of the la' 'hile treatin" the tribunal 'ith

candourF fairnessF courtesyF and respect As an ad!ocate )illia*s has an obli"ationto represent Ray resolutely ?'ith fied purposeF boldlyF fir*lyF steadilyF 'ith perse!erance.

• To deter*ine 'hether )illia*s is in a conflict of interestF he *ust loo/ at all of the

circu*stances to deter*ine each party or personJs interests in the *atter.

Question 5 of 10

)hat is each partyGs6personGs interest in these circu*stances#

OAns'er

•RayJs interest to con!ince the Hud"e that 'hat AB did 'as 'ron".

• @onesJ interest to con!ince the Hud"e that 'hat AB did 'as ri"ht. @onesF as 'itnessF

'ants the Hud"e to belie!e her testi*ony

• )illia*sJ interset to satisfy RayJs desire to con!ince the Hud"e that AB is 'ron". This

is because of his duty to follo' his clientJs instructions.

• )illia*sJ interest to *aintain a "ood relationship 'ith @ones because @ones has the

ability to confer or deny financial benefits to his partnersF and therefore to )illia*s.

Question of 10

&o' *ay )illia*sG personal interest ad!ersely affect his Hud"*ent on behalf of Ray#

OAns'er:

• )illia*s has a financial interest in *aintainin" a "ood relationship 'ith @ones. If he

attac/s @ones !i"orously in courtF he *ay da*a"e the relationship 'ith @ones.

• In this situationF Ray could ar"ue that )illia*sG financial interest 'ill co*pel hi* to ="o

easy> on @ones. The financial interest is cloudin" his Hud"*ent or loyalty to Ray.

Question ! of 10

19


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)hat should )illia*s ha!e done to a!oid the proble*#

OAns'er:

•


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5i!en these additional factsF 'ith reference to the Rules of Professional onductF does Ray ha!eany "rounds for a co*plaint a"ainst his la'yer# )hy or 'hy not#

Rule 1.$%: O=client> includes a client of the la' fir* of 'hich the la'yer is a partner or associateF 'hether or not the la'yer handles the clientGs 'or/

Ray is a client re"ardless of 'hich la'yer 'or/s on his file. If one la'yer is in a conflict of interestF thenaccordin" the Rules all the la'yers are in a conflict of interest 'ith that client.

8dditional Facts

Assu*e no' that the )illia*s fir* is co*prised of 1$$ la'yersF $ of 'ho* are partnersF andthat )illia*s had no personal /no'led"e of the referrals and of the pre!ious e*ploy*entrelationship 'ith the @ones fir*.

Assu*e that )illia*s had ne!er been e*ployed at the @ones fir*. RatherF he operated as a sole

practitioner until %$$$. At that ti*eF three associates fro* @ones and rai" left to Hoin )illia*sas partners and established )illia*s Da'yers. After lea!in" the @ones fir* in %$$$F the ne' partners at the )illia*s fir* continued to 'or/ on approi*ately fi!e *atters in 'hich they'ere in!ol!ed 'hile they 'ere associates at the @ones fir*. As of the date of RayGs trial in %$$;F@ones had referred approi*ately si cases to the )illia*s fir*.


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• Da'yers *ust be sensiti!e not only to ob!ious conflictsF but also to forces that *i"ht

operate upon the* subtly in a *anner li/ely to di*inish the Cuality of their 'or/

• Da'yers *ust disre"ard the desires of third parties

• If the third party is in a position to eert stron" econo*icF politicalF or social pressures onthe la'yerF then the desires of the third party *ay ha!e an ad!erse affect on the la'yerGs Hud"*ent

• To help identify these types of conflicts earlyF la'yers should use and *aintain a proper

conflicts chec/in" syste*F one 'hich includes the na*es of indi!iduals or entities that*ay influence a la'yerGs Hud"*ent

%$


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. True or ,alse: onflicts of Interest

Question 1 of 10

A la'yer *ay act a"ainst a for*er client in a related *atter pro!ided the la'yer has not obtainedrele!ant confidential infor*ation fro* the for*er client about the related *atter.

Option: TrueOption: ,alse

OAns'er:

+ubrule %.$2?2?b of the Rules states that:

A la'yer 'ho has acted for a client in a *atter shall not thereafter act a"ainst the client ora"ainst persons 'ho 'ere in!ol!ed in or associated 'ith the client in that *atter

?b in any related *atter

Question 2 of 10

)hen a la'yer is dealin" on a clientJs behalf 'ith an unrepresented personF the la'yer shall*a/e clear to the unrepresented person that the la'yer 'ill protect the interests of his client andthe unrepresented party.


%1


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OAns'er:Rule %.$2:?12)hen a la'yer is dealin" on a clientGs behalf 'ith an unrepresented personF the la'yer shall:?a ur"e the unrepresented person to obtain independent le"al representationF ?b ta/e care to seethat the unrepresented person is not proceedin" under the i*pression that his or her interests 'ill

be protected by the la'yerF and ?c a=e clea$ to t&e un$ep$esented pe$son t&at t&e la'ye$ isacting exclusiely in t&e inte$ests of t&e client and acco$dingly &is o$ &e$ coents ay *epa$tisan+

Question 3 of 10

)here a la'yer acts for both the borro'er and the lender in a *ort"a"e transactionF the la'yershall disclose to the borro'er and lenderF in 'ritin"F before the ad!ance of the *ort"a"eF all*aterial infor*ation that is rele!ant to the transaction.


OAns'er:+ubrule %.$2?-.1 of the Rules states that:

)here a la'yer acts for both the borro'er and the lender in a *ort"a"e or loan transactionF thela'yer shall disclose to the borro'er and the lenderF in 'ritin"F before the ad!ance or release ofthe *ort"a"e or loan fundsF all *aterial infor*ation that is rele!ant to the transaction.

Question 4 of 10

A conflict *ay eist 'here a la'yerJs fa*ily *e*ber has a personal financial interest in theclientJs affairs or in the *atter in 'hich the la'yer is reCuested to act for the client.


OAns'er:+ubrule %.$2?1F o**entary of the Rules states that:

In this ruleF

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a Sconflict of interestS or a Sconflictin" interestS *eans an interest

?a that 'ould be li/ely to affect ad!ersely a la'yerJs Hud"*ent on behalf ofF or loyalty toF aclient or prospecti!e clientF or

?b that a la'yer *i"ht be pro*pted to prefer to the interests of a client or prospecti!e client.

Coenta$y

onflictin" interests includeF but are not li*ited toF the financial interest of a la'yer or anassociate of a la'yerF includin" that 'hich *ay eist 'here la'yers ha!e a financial interest in afir* of nonla'yers in an affiliationF and the duties and loyalties of a la'yer to any other clientFincludin" the obli"ation to co**unicate infor*ation. ,or ea*pleF there could be a conflict ofinterest if a la'yerF or a fa*ily *e*berF or a la' partner had a personal financial interest in theclientJs affairs or in the *atter in 'hich the la'yer is reCuested to act for the clientF such as a partnership interest in so*e Hoint business !enture 'ith the client. The definition of conflict of

interestF ho'e!erF does not capture financial interests that do not co*pro*ise a la'yerJs duties tothe client. ,or ea*pleF a la'yer o'nin" a s*all nu*ber of shares of a publicly tradedcorporation 'ould not necessarily ha!e a conflict of interestF because the holdin" *ay ha!e noad!erse influence on the la'yerJs Hud"*ent or loyalty to the client.

)here a la'yer is actin" for a friend or fa*ily *e*berF the la'yer *ay ha!e a conflict ofinterest because the personal relationship *ay interfere 'ith the la'yerJs duty to pro!ideobHecti!eF disinterested professional ad!ice to the client.

Question 5 of 10

)here a la'yer has obtained rele!ant confidential infor*ation concernin" a for*er clientJs ne'*atterF the la'yer s partner *ay act a"ainst the for*er client in the ne' *atter if the for*erclient consents.


OAns'er:Rule %.$:?2)here the transferrin" la'yer actually possesses rele!ant infor*ation respectin" the for*erclient that is confidential and thatF if disclosed to a *e*ber of the ne' la' fir*F *ay preHudicethe for*er clientF the ne' la' fir* shall cease its representation of its client in that *atter unless?a t&e fo$e$ client consents to t&e ne' la' fi$>s continued $ep$esentation of its client F or?b the ne' la' fir* establishes that it is in the interests of Hustice that it act in the *atterF ha!in"re"ard to all rele!ant circu*stancesF includin"F ?i the adeCuacy and ti*in" of the *easures ta/ento ensure that no disclosure to any *e*ber of the ne' la' fir* of the for*er clientJs confidential

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infor*ation 'ill occurF ?ii the etent of preHudice to any partyF ?iii the "ood faith of the partiesF?i! the a!ailability of suitable alternati!e counselF and ?! issues affectin" the public interest.

Question of 10

If a la'yer accepts e*ploy*ent fro* *ore than one client in a *atterF the la'yer shall ad!ise theclients that all infor*ation recei!ed fro* one client in connection 'ith the *atter 'ill be treatedas confidential so far as any of the other clients are concerned.


+ubrule %.$2?- of the Rules states that:

(cept as pro!ided in subrule ?;.%F 'here a la'yer accepts e*ploy*ent fro* *ore than oneclient in a *atter or transactionF the la'yer shall ad!ise the clients that

?a the la'yer has been as/ed to act for both or all of the*F

?b no infor*ation recei!ed in connection 'ith the *atter fro* one can be treated asconfidential so far as any of the others are concernedF and

?c if a conflict de!elops that cannot be resol!edF the la'yer cannot continue to act for both or allof the* and *ay ha!e to 'ithdra' co*pletely.

Question ! of 10

A la' fir* of t'o or *ore la'yers *ay act for or other'ise represent a transferor and atransferee in a transfer of title to real property so lon" as the transferor and transferee arerepresented by different la'yers in the fir* and there is no !iolation of Rule %.$2.


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OAns'er:+ubrule %.$2.1?% of the Rules states that:

+ubrule ?1 does not pre!ent a la' fir* of t'o or *ore la'yers fro* actin" for or other'iserepresentin" a transferor and a transferee in a transfer of title to real property so lon" as the

transferor and transferee are represented by different la'yers in the fir* and there is no !iolationof rule %.$2.

Question " of 10

)here clients ha!e consented to a Hoint retainer and a contentious issue arises a*on" the*F thela'yer *ay assist 'ith settlin" the issue throu"h direct ne"otiations a*on" the clients.


OAns'er:+ubrule %.$2?0 of the Rules states that:

+a!e as pro!ided by subrule ?1$F 'here clients ha!e consented to a Hoint retainer and an issuecontentious bet'een the* or so*e of the* arisesF their la'yer shall

?a not ad!ise the* on the contentious issueF and

?b refer the clients to other la'yersF unless

?i no le"al ad!ice is reCuiredF and

?ii the clients are sophisticatedF

in 'hich caseF the clients *ay settle the contentious issue by direct ne"otiation in 'hich thela'yer does not participate.

Question , of 10

A la'yer *ay act for both the lender and the borro'er in a *ort"a"e or land transaction if theconsideration of the *ort"a"e does not eceed U1$$F$$$.


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OAns'er:Rule %.$2:?1% Pro!ided that there is no !iolation of this ruleF a la'yer *ay act for or other'ise represent both lender and borro'er in a *ort"a"e or loan transaction if

?a the la'yer practises in a re*ote location 'here there are no other la'yers that either partycould con!eniently retain for the *ort"a"e or loan transactionF?b the lender is sellin" real property to the borro'er and the *ort"a"e represents part of the purchase priceF?c the lender is a ban/F trust co*panyF insurance co*panyF credit union or finance co*pany thatlends *oney in the ordinary course of its businessF-d. t&e conside$ation fo$ t&e o$tgage o$ loan does not exceed ?50000 o$

?e the lender and borro'er are not at =ar*Gs len"th> as defined in the Inco*e Ta Act ?anada.

Question 10 of 10

Before acceptin" a retainer to pro!ide le"al ser!ices to a client Hointly 'ith an affiliated entity'ho is pro!idin" the client 'ith nonle"al ser!icesF a la'yer shall disclose to the client anyfinancial arran"e*ents bet'een the la'yer and the affiliated entity that *ay affect theindependence of the la'yerJs representation of the client.


OAns'er:Rule %.$2:?1$.1 )here there is an affiliationF before acceptin" a retainer to pro!ide le"al ser!ices to aclient Hointly 'ith nonle"al ser!ices of an affiliated entityF a la'yer shall disclose to the client?a any possible loss of solicitor and client pri!ile"e because of the in!ol!e*ent of the affiliatedentityF includin" circu*stances 'here a nonla'yer or nonla'yer staff of the affiliated entity pro!ide ser!icesF includin" support ser!icesF in the la'yerGs officeF?b the la'yerGs role in pro!idin" le"al ser!ices and in pro!idin" nonle"al ser!ices or in pro!idin" both le"al and nonle"al ser!icesF as the case *ay beF?c. any financial econoic o$ ot&e$ a$$angeents *et'een t&e la'ye$ and t&e affiliatedentity t&at ay affect t&e independence of t&e la'ye$@s $ep$esentation of t&e client

including '&et&e$ t&e la'ye$ s&a$es in t&e $eenues p$ofits o$ cas& flo's of t&e affiliated

entityA and

?d a"ree*ents bet'een the la'yer and the affiliated entityF such as a"ree*ents 'ith respect toreferral of clients bet'een the la'yer and the affiliated entityF that *ay affect the independenceof the la'yerGs representation of the client.

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"est #ourself

A. Identifyin" the Issues

)cena$io 1 of 5

+olicitor A attended at a crossea*ination before a +pecial (a*iner on behalf of his client.The opposin" solicitorF +olicitor BF opened the crossea*ination by sayin"F =8/ay 7u*boF youcan start.>

+olicitor B continued to refer to +olicitor A as =7u*bo>F interfered 'ith his Cuestionin" and*ade other rude and dispara"in" co**ents. After the +olicitor B had poured coffee on +olicitor

AJs notes for the fourth ti*eF +olicitor A as/ed the +pecial (a*iner to adHourn the crossea*ination. )hen this 'as doneF +olicitor B said to +olicitor AF =5o bac/ to your little holeand stay 'here you belon".>

OIssues:

• This la'yer has contra!ened subrule +03-1. and co**entary OA la'yer shall be

courteousF ci!ilF and act in "ood faith 'ith all persons 'ith 'ho* the la'yer has dealin"s in

the course of his or her practice. and subrule 4+01-. and co**entary OA la'yer shall becourteousF ci!ilF and act in "ood faith to the tribunal and 'ith all persons 'ith 'ho* the

la'yer has dealin"s in the course of liti"ation. of the Rules of Professional onductF

'hich prohibits callin" the other la'yer rudeF dero"atory or insultin" na*es in front ofclients.

• +ubrule +03-1. and co**entary also deal 'ith sarcastic re*ar/s.

ule +03-1. Coenta$y:The public interest de*ands that *atters entrusted to a la'yer be dealt 'ith effecti!ely and epeditiouslyFand fair and courteous dealin" on the part of each la'yer en"a"ed in a *atter 'ill contribute *aterially to

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this end. The la'yer 'ho beha!es other'ise does a disser!ice to the clientF and ne"lect of the rule 'illi*pair the ability of la'yers to perfor* their function properly. Any ill feelin" that *ay eist or been"endered bet'een clientsF particularly durin" liti"ationF should ne!er be allo'ed to influence la'yers intheir conduct and de*eanour to'ard other le"al practitioners or the parties. The presence of personalani*osity bet'een le"al practitioners in!ol!ed in a *atter *ay cause their Hud"*ent to be clouded bye*otional factors and hinder the proper resolution of the *atter. Personal re*ar/s or personally abusi!e

tactics interfere 'ith the orderly ad*inistration of Hustice and ha!e no place in our le"al syste*. A la'yershould a!oid illconsidered or uninfor*ed criticis* of the co*petenceF conductF ad!iceF or char"es ofother le"al practitionersF but should be preparedF 'hen reCuestedF to ad!ise and represent a client in aco*plaint in!ol!in" another le"al practitioner.

ule 4+01-. Coenta$y:

De"al conte*pt of court and the professional obli"ation outlined here are not identicalF and a consistent pattern of rudeF pro!ocati!eF or disrupti!e conduct by the la'yerF e!en thou"h unpunished as conte*ptF*i"ht 'ell *erit discipline.

)cena$io 2 of 5

Rosalie ,arber ?=Rosalie> attended a dinner party and 'as seated beside a liti"ation la'yerFTo*ai 7oan ?=To*ai>. Rosalie 'as !ery upsetF as she had Hust learned about a proposedaddition to her nei"hbour 7oreen +*ithJs ?=7oreen> house that Rosalie belie!ed 'ould protrudeabout 1$ feet onto her bac/yard and interfere 'ith her use and enHoy*ent of her property.

8!er coffeeF Rosalie told To*ai about this situation and her discussions 'ith 7oreen. To*aicasually replied that Rosalie *i"ht ha!e so*ethin" to pursue. Rosalie /ne' that she 'ould ha!eto ta/e so*e le"al action and 'as happy that she 'as able to discuss her case 'ith To*aiF 'ith'ho* she had no further contact after the party.

Rosalie ca*e into contact 'ith To*ai three *onths laterF 'hen she spo/e 'ith her nei"hbourF7oreenF about further concerns re"ardin" the addition. 7oreen told Rosalie to ta/e the *atter up'ith 7oreenJs la'yerF To*ai. +hoc/ed by this state*entF Rosalie contacted To*aiJs office andrecei!ed confir*ation fro* To*aiJs secretary that To*aiJs fir* had Hust be"un representin"7oreen.

OIssues:

• A solicitorclient relationship *ay ha!e been created bet'een Rosalie and To*ai as a

result of the discussion at a dinner party. ?7efinition of =client>F ule 1+02 and

co**entary.

o o**entary for =client>: 8 solicito$ and client $elations&ip is often esta*lis&ed

'it&out fo$ality. ,or ea*pleF an epress retainer or re*uneration is not reCuired for asolicitor and client relationship to arise. AlsoF in so*e circu*stancesF a la'yer *ay ha!ele"al and ethical responsibilities si*ilar to those arisin" fro* a solicitor and clientrelationship. ,or ea*pleF a la'yer *ay *eet 'ith a prospecti!e client in circu*stancesthat i*part confidentialityF andF althou"h no solicitor and client relationship is e!er

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actually establishedF the la'yer *ay ha!e a disCualifyin" conflict of interest if he or she'ere later to act a"ainst the prospecti!e client. It isF thereforeF in a la'yerGs o'n interestto carefully *ana"e the establish*ent of a solicitor and client relationship.

• There *ay be a conflict of interest in To*ai actin" for the nei"hbour after Rosalie

discussed the case 'ith her. ?+ubrule 2+04-2.: A la'yer shall not ad!ise or represent *orethan one side of a dispute.

• There *ay be duty of confidentiality o'ed by To*ai to Rosalie after their infor*al

discussion of RosalieGs case at the dinner party. ?+ubrule 2+03-1.: A la'yer at all ti*esshall hold in strict confidence all infor*ation concernin" the business and affairs of the clientacCuired in the course of the professional relationship and shall not di!ul"e any suchinfor*ation unless epressly or i*pliedly authoriEed by the client or reCuired by la' to do

so.

• To*ai *ay ha!e to refuse to continue to act for the nei"hbour. ?lause 2+04-4.-a.: A

la'yer 'ho has acted for a client in a *atter shall not thereafter act a"ainst the client ora"ainst persons 'ho 'ere in!ol!ed in or associated 'ith the client in that *atter: ?a in thesa*e *atterL ?b in any related *atterL or ?c sa!e as pro!ided by subrule ?F in any ne'*atterF if the la'yer has obtained fro* the other retainer rele!ant confidential infor*ation

unless the client and those in!ol!ed in or associated 'ith the client consent

• To*ai *ust ensure that she properly *ana"es the establish*ent of her solicitorclient

relationships. ?lause 2+01-1.-i.: =co*petent la'yer> *eans a la'yer 'ho has and appliesrele!ant s/illsF attributesF and !alues in a *anner appropriate to each *atter underta/en on

behalf of a client includin": ?i *ana"in" oneGs practice effecti!ely.

•

To*ai *ust be 'ary of the i*pact of casual discussions in!ol!in" le"al issues.

• To*aiGs secretary should not ha!e disclosed that 7oreen is a client of the fir*.

)cena$io 3 of 5

Marilyn is a ne'ly called la'yer 'ho is tryin" to build up her buddin" practice as a cri*inaldefence la'yer. +he shares space 'ith one of the *ost successful cri*inal la'yers in the city.)hen the la'yer is forced to decline a hi"h profile *urder case because of a conflictF he refers

the client to Marilyn and as/s Marilyn to pay hi* a referral fee. The case attracts considerable*edia attentionF and Marilyn is as/ed to "i!e inter!ie's to the press. +he a"rees for 'hat she belie!es are t'o "ood reasons: 1 "ettin" her clientJs story out in public 'ill help his defenceLand % "ettin" her na*e out into the public 'ill help her career.

Marilyn "i!es her first inter!ie' and belie!es that it 'ent 'ell. &o'e!erF 'hen she reads thestory in print the net dayF a nu*ber of her ans'ers ha!e been ta/en out of contet. Althou"h sheis an"ry about thisF she is too busy to ta/e steps to correct the public record.

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The trial concludes and Marilyn is successful in achie!in" an acCuittal. +he is approached by a publisher 'ho 'ants to 'rite the story of the trial and MarilynJs in!ol!e*ent.

OIssues:

•The la'yer is not per*itted to recei!e a referral fee because the referral 'as *ade because of a conflict of interest. ?+ubrule 2+0"-!.: )here a la'yer refers a *atter toanother licensee because of the epertise and ability of the other licensee to handle the*atter and the referral 'as not *ade because of a conflict of interestF the referrin" la'yer *ay accept and the other licensee *ay pay a referral fee pro!ided that: ?a the fee isreasonable and does not increase the total a*ount of the fee char"ed to the clientF andL ?bthe client is infor*ed and consents.

• The la'yer and public appearances 4 ensure that it is in the interests of the client to *a/e

the state*ents. ?+ubrule +0-1. Pro!ided that there is no infrin"e*ent of the la'yerGsobli"ations to the clientF the professionF the courtsF or the ad*inistration of HusticeF a

la'yer *ay co**unicate infor*ation to the *edia and *ay *a/e public appearancesand state*ents. ?and coenta$y: A la'yerJs duty to the client de*ands thatF before*a/in" a public state*ent concernin" the clientJs affairsF the la'yer *ust first besatisfied that any co**unication is in the best interests of the client and 'ithin the scopeof the retainer. Public co**unications about a clientGs affairs should not be used for the purpose of publiciEin" the la'yer and should be free fro* any su""estion that thela'yerJs real purpose is selfpro*otion or selfa""randiEe*ent....Da'yers should bea'are that 'hen they *a/e a public appearance or "i!e a state*ent they 'ill ordinarilyha!e no control o!er any editin" that *ay follo' or the contet in 'hich the appearanceor state*ent *ay be usedF or under 'hat headline it *ay appear.

• 8btain client instructions before *a/in" state*ents to the *edia. ?+ubrules +0-1. and2+03-1.: A la'yer at all ti*es shall hold in strict confidence all infor*ation concernin" the business and affairs of the client acCuired in the course of the professional relationship andshall not di!ul"e any such infor*ation unless epressly or i*pliedly authoriEed by the client

or reCuired by la' to do so.

• se caution because it is not possible to control the final product "i!en to the public.

?+ubrule +0-1. and co**entary

• Public state*ents should not be used solely for the purpose of pro*otin" the la'yer.

?+ubrule +0-1. and co**entary

• The duty of confidentiality continues indefinitely after the ter*ination of the retainer.

?+ubrule 2+03-1. and co**entary

• If a la'yer en"a"es in literary 'or/sF he shall not disclose confidential infor*ation

'ithout the clientGs consent. ?+ubrule 2+03-.: If a la'yer en"a"es in literary 'or/sF such asa *e*oir or an autobio"raphyF the la'yer shall not disclose confidential infor*ation 'ithout

the clientGs or for*er clientGs consent.

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• The la'yer should ta/e appropriate steps to correct her ans'er.

)cena$io 4 of 5

The follo'in" e*ail has been sent by the husbandJs counsel directly to the 'ife in the *idst of a bitter *atri*onial dispute. The 'ife has counsel in this *atter.

To: Maria ?*ariaVyahoo.co*

+ubHect: Your chronic lyin"

You are a"ain de*onstratin" that you are a patholo"ical liar 'ho is only interested in *oney.

Your la'yer has failed to contact *e about the childrenJs transportation arran"e*ents for *yclientJs net !isit 'ith the* and their after school acti!ities. It is la*entable that I ha!e to 'aituntil this late hour to assist *y client in *a/in" arran"e*entsF but you and your la'yer areclearly procrastinatin".

)hile it is not *y Hob to educate your counselF I thin/ the la' is clear that I a* entitled to /no''hat your plans are. May 'e please hear fro* you on this.

OIssues:

•

Inappropriate to correspond directly 'ith the 'ife 'ho is represented by counsel ?+ubrule+03-!.: +ubHect to subrules ?9.1 and ?;F if a person is represented by a le"al practitioner in respect of a *atterF a la'yer shall notF ecept throu"h or 'ith the consent of the le"al practitionerF?a approach or co**unicate or deal 'ith the person on the *atterF or ?b atte*pt to ne"otiate or co*pro*ise the *atter directly 'ith the person.

• Tone of the e*ail is rude and offensi!e ?+ubrules +03-1.: A la'yer shall be courteousF

ci!ilF and act in "ood faith 'ith all persons 'ith 'ho* the la'yer has dealin"s in the course

of his or her practice. ?and +03-5: A la'yer shall not in the course of professional practicesend correspondence or other'ise co**unicate to a clientF another le"al practitionerF or any

other person in a *anner that is abusi!eF offensi!eF or other

•riticis* of another la'yer is unprofessional ?+ubrules +03-1. and -5..

)cena$io 5 of 5

You are a sole practitioner practisin" eclusi!ely in fa*ily la'. @ohn approaches you to handlehis di!orce. You and your spouse ha!e been "ood friends 'ith @ohnF and you /no' his 'ife andchildren reasonably 'ell. )hile draftin" the property settle*entF you suspect @ohn has not

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declared all of his assets. )hen you as/ @ohn about itF he insists that his list of assets is co*plete.You are not con!incedF )hat should you do#

OIssues:

•(press your concerns to @ohnF and if he continues to insist that his assets are co*pleteFconsider 'ithdra'in" fro* the file ?+ubrule 2+02-5. and co**entary: )hen actin" for aclientF a la'yer shall not :?a /no'in"ly assist in or encoura"e any dishonestyF fraudF cri*eF or ille"al conductL?b ad!ise the client on ho' to !iolate the la' and a!oid punish*ent.?and clause 2+0,-!.-d.: +ubHect to the rules about cri*inal proceedin"s and the direction ofthe tribunalF a la'yer shall 'ithdra' if:?a dischar"ed by the clientF?b the la'yer is instructed by the client to do so*ethin" inconsistent 'ith the la'yerJs dutyto the tribunal andF follo'in" eplanationF the client persists in such instructionsF?c the client is "uilty of dishonourable conduct in the proceedin"s or is ta/in" a positionsolely to harass or *aliciously inHure anotherF?d it *ecoes clea$ t&at t&e la'ye$>s continued eployent 'ill lead to a *$eac& oft&ese $ules

?d.1 the la'yer is reCuired to do so pursuant to subrules %.$% ?.1 or ?.% ?dishonestyFfraudF etc. 'hen client an or"aniEationF or

?e the la'yer is not co*petent to handle the *atter..

• A la'yer shall not /no'in"ly assist or per*it the client to do anythin" that the la'yer

considers to be dishonest or dishonourable. ?Rule 4+01-2.-*.: )hen actin" as an ad!ocateFa la'yer shall not:?a abuse the process of the tribunal by institutin" or prosecutin" proceedin"s 'hichFalthou"h le"al in the*sel!esF are clearly *oti!ated by *alice on the part of the client and are

brou"ht solely for the purpose of inHurin" the other partyF?*. =no'ingly assist o$ pe$it t&e client to do anyt&ing t&at t&e la'ye$ conside$s to *edis&onest o$ dis&onou$a*le

?c appear before a Hudicial officer 'hen the la'yerF the la'yerJs associates or the client ha!e business or personal relationships 'ith the officer that "i!e rise to or *i"ht reasonably appear to "i!e rise to pressureF influenceF or induce*ent affectin" the i*partiality of the officerF?d endea!our or allo' anyone else to endea!ourF directly or indirectlyF to influence thedecision or action of a tribunal or any of its officials in any case or *atter by any *eans other than open persuasion as an ad!ocateF?e /no'in"ly atte*pt to decei!e a tribunal or influence the course of Hustice by offerin" falsee!idenceF *isstatin" facts or la'F presentin" or relyin" upon a false or decepti!e affida!itF

suppressin" 'hat ou"ht to be disclosedF or other'ise assistin" in any fraudF cri*eF or ille"alconductF?f /no'in"ly *isstate the contents of a docu*entF the testi*ony of a 'itnessF the substanceof an ar"u*entF or the pro!isions of a statute or li/e authorityF?" /no'in"ly assert as true a fact 'hen its truth cannot reasonably be supported by thee!idence or as a *atter of 'hich notice *ay be ta/en by the tribunalF?h deliberately refrain fro* infor*in" the tribunal of any bindin" authority that the la'yerconsiders to be directly on point and that has not been *entioned by an opponentF

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?i dissuade a 'itness fro* "i!in" e!idence or ad!ise a 'itness to be absentF?H /no'in"ly per*it a 'itness or party to be presented in a false or *isleadin" 'ay or toi*personate anotherF?/ needlessly abuseF hectorF or harass a 'itnessF?l 'hen representin" a co*plainant or potential co*plainantF atte*pt to "ain a benefit forthe co*plainant by threatenin" the layin" of a cri*inal char"e or by offerin" to see/ or to procure the 'ithdra'al of a cri*inal char"eF and

?* needlessly incon!enience a 'itness..

Module $: Client Co%%unications

Con&dentiality and 'olicitor(Client PriilegeA. onfidentiality ase +tudy

5ordonF a la'yerF li!es 'ith his 'ife and t'o teena"e children. &e 'or/s at ho*e as *uch as possible and only attends his office in the city to *eet 'ith clients to conduct research or *eet'ith office staff.

5ordon is 'or/in" fro* his ho*e office 'hen he recei!es a phone call fro* his account*ana"er at the ban/. The ban/ reCuires a copy of his accounts recei!able for all the files thatha!e accounts 'hich are 0$ days o!erdue or *ore. 5ordon *ust produce the list to ensure thatthe ban/ 'ill continue to etend his la' practiceJs line of credit for operatin" costs. 5ordon

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phones RandallF his assistantF and instructs hi* to send a copy of his accounts recei!able to the ban/.

Question 1 of 12

)hat does 5ordon need to consider before sendin" the list of his accounts recei!able to the ban/#

OAns'er:

Rule %.$3:? A la'yer *ay disclose confidential infor*ation in order to establish or collect the la'yerJsfeesF but the la'yer shall not disclose *ore infor*ation than is reCuired.

5ordon needs to as/ hi*self the follo'in" Cuestions:

•

Is this disclosure necessary to ser!e the interests of the clients such that client consent can be i*plied# &a!e the clients "i!en their i*plied consent to disclosure of thisinfor*ation#

• Are his clients a'are that he is disclosin" the status of their outstandin" accounts to a

third partyF his financial institution# If the ans'er to any of these Cuestions is noF as soon as the ban/ recei!es the list of clients 'ithoutstandin" accountsF 5ordon 'ill ha!e breached his obli"ation of confidentiality to the clientson that list.

Question 2 of 12

)hat should 5ordon ha!e done#

OAns'er:suallyF an accounts recei!able list 'ill include the na*es of all clients 'ith outstandin" accounts and anindication of ho' lon" each account has re*ained outstandin". Da'yers are not per*itted to disclose thisinfor*ation to third parties unless the client consents or the disclosure is per*itted or Hustified in la' orunder the Rules of Professional Conduct . To *ana"e the potential for a breach of confidentiality in this

situationF the la'yer should ha!e identified the clients by a code identifie$ nu*e$ so that the financialinstitution 'ouldnJt /no' either the clientGs na*e or the *atter for 'hich the la'yer has been retained.

Question 3 of 12

)hat are the ris/s of either inad!ertent disclosure or interception of sendin" this infor*ation bye*ail# +hould 5ordon ha!e done anythin" differently#

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OAns'er:

5ordon should ha!e discussed 'ith the client at the co**ence*ent of the retainer the ris/s ofusin" different types of *edia to trans*it hi"hly sensiti!e and confidential infor*ation.

The use of po'erful and efficient infor*ation technolo"ies can both enhance and pose a ris/ tothe la'yerGs ability to ser!e the client. 5i!en the i*portance of *aintainin" la'yerclientconfidentialityF la'yers *ust use infor*ation technolo"y responsibly and ethically. Da'yersshould ha!e a reasonable understandin" of the technolo"y they are usin" and its ris/s. Mana"in"infor*ation and electronic *edia is of crucial i*portance 'hen client infor*ation is hi"hlysensiti!e. The anadian Bar AssociationGs 5uidelines for Practicin" (thically 'ith


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)hen 5ordon arri!es at the officeF he re!ie's his e*ail and sa!es the attach*ents that 'eresent by AB orp. on the fir* net'or/. &e as/s his office assistantF RandallF to contact clientsabout a !ariety of *atters includin" pay*ent of outstandin" client accounts.

Randall calls ar*ela to as/ for further details about AB orpJs ne' !enture. nable to reach

her on her cell phoneF he calls her office and her ho*e. &e lea!es one *essa"e on her cell phoneJs ans'erin" ser!iceF another 'ith her assistant at 'or/ and another on her !oice*ail atho*e. &e says he needs to as/ her so*e Cuestions about the ne' in!ention that her co*pany'ants to license.

Question 5 of 12

&as 5ordon handled this situation properly#

OAns'er:

5ordon should ha!e discussed 'ith the client 'here and 'ith 'ho* *essa"es could be left.

Da'yers *ust be !ery clear as to the scope of disclosure authoriEed by the client. lients *aynot 'ant fa*ily *e*bersF e*ployers or friends to /no' about their le"al affairs. nless theclient has authoriEed or instructed the la'yer to do soF la'yers should not lea!e !oice*ail*essa"es on *essa"e syste*s. Inad!ertent disclosure of pri!ate confidential infor*ation *ayoccur if the *essa"e is heard by a third party.

Da'yers should also infor* their clients of the ris/s of disclosure. At the be"innin" of theretainer they should discuss 'ith their clients acceptable for*s of co**unicationF as 'ell as

'here and 'ith 'ho* *essa"es *ay be left. The anadian Bar Association offers the follo'in"ad!ice:

Da'yers should infor* a client of the ris/s of unauthoriEed disclosure and interception beforeusin" infor*ation technolo"ies. Da'yers need to ensure that their clientsF tooF understand thatthey need to protect the confidentiality of co**unications to the*W ,or ea*pleF in the shiftfro* telephone ans'erin" *achines to di"ital !oice*ailF telephone *essa"es no' attractconfidentiality ris/s si*ilar to those for e*ail co**unicationsF na*ely that *essa"es can beeasily sa!edF copied and for'arded.

Randall re!ie's si client *atters that ha!e outstandin" fees and disburse*ents. 8n 5ordonJsinstructionsF Randall sends copies of the outstandin" accounts to the fir*Js collection a"ency toenforce pay*ent.

Question of 12

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Is this disclosure of confidential client infor*ation Hustified# )hat steps could 5ordon ha!eta/en to better *ana"e his obli"ations#

OAns'er:5ordon should ha!e redacted or bloc/ed out any confidential client infor*ation not necessary to enforce pay*ent. Da'yers are per*itted to disclose confidential infor*ation in order to collect outstandin" feesand disburse*entsF but no *ore infor*ation than is necessary for that purpose. )here accounts containconfidential infor*ationF the la'yer *ust re*o!e that infor*ation before the accounts are re!ealed to acollection a"ency or e!en the courts.

Rule %.$3:? A la'yer *ay disclose confidential infor*ation in order to establish or collect the la'yerJsfeesF but the la'yer shall not disclose *ore infor*ation than is reCuired.

5ordon *eets 'ith a current clientF PetraF and they re!ie' a draft 8ffer to +ettle on his laptop

co*puter screen. To"ether 5ordon and Petra discuss the details of the proposed offer and re!isethe docu*ent on the screen.

8nce Petra is satisfied 'ith the final draftF 5ordon prints t'o copies of the offer and has Petrasi"n the*. &e "i!es Petra one copy and puts one in PetraGs file. 5ordon Cuic/ly drafts a co!erin"e*ail to the other la'yerF attaches the electronic copy of the offer to settleF and sends it to theother la'yer.

Question ! of 12

&as 5ordon ta/en proper steps to address possible breaches of confidentiality fro* access to*etadata by third parties# (plain your ans'er.

OAns'er:Metadata is infor*ation about other data thatF althou"h hidden on nor*al !ie'in"F can be disclosed 'henthe docu*ent is circulated electronically. Metadata infor*ation *ay include such infor*ation asdocu*ent re!isionsF includin" insertions and deletionsF trac/ed chan"es and co**ents added byre!ie'ers. Da'yers ha!e an ethical obli"ation 'hen trans*ittin" docu*ents electronically to eercisereasonable care to ensure that confidential infor*ation is not disclosed in the *etadata. 5ordon shouldha!e ta/en steps to *ini*iEe the creation of *etadata as 'ell as re*o!ed any hidden data before sendin"the docu*ent.

After Petra lea!esF 5ordon ushers a ne' clientF RaHF into his office. RaH is seated in the sa*echair as PetraF 5ordonJs pre!ious client. 5ordon sets PetraJs open file aside to one corner of hisdes/ and proceeds to inter!ie' RaH. &is co*puter screenF 'hich displays PetraJs 8ffer to +ettleFis clearly !isible fro* RaHJs seat.

Question " of 12

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)hat should 5ordon ha!e done to *ini*iEe access to client infor*ation#

OAns'er:5ordon should ha!e ensured PetraGs file 'as closed or filed a'ay. &e should ha!e *o!ed thescreen a'ay fro* RaHGs !ie'. +o*eti*es the la'yerGs office *ay allo' inad!ertent breaches of

confidential infor*ation to occur. Da'yers should al'ays position co*puter screens in 'aitin"roo*s and offices so that they cannot be seen by clients.

After the inter!ie' is co*pletedF RaH *eets 'ith Randall to "o o!er the details of the retainera"ree*ent. Randall ta/es RaH in to the boardroo* that 5ordon shares 'ith another sole practitioner. After the *eetin" 'ith RaHF Randall files the ne' client file in the shared filin"cabinet in the boardroo*.

Question , of 12

)hat precautions can be ta/en to acco**odate the la'yerJs practice or office arran"e*ents'hile properly *ana"in" or protectin" confidential client infor*ation#

OAns'er:A nu*ber of confidentiality issues arise for la'yers in officesharin" arran"e*ents. It is notunco**on for sole practitioners to share office pre*isesF staffF and o!erhead costs 'ith otherla'yers 'ho are also sole practitioners. It is i*portant to /eep in *ind that unli/e in a partnershipF or lar"e fir* situationF the clients of one sole practitioner are not the clients of all the

sole practitioners sharin" office space. Accordin"lyF it is i*portant that in officesharin"arran"e*entsF office layoutsF filin" proceduresF and all other aspects of office procedures and policies are desi"ned to ensure that a*on" other thin"sF that client confidentiality is *aintained.nless the client 'ai!es his or her ri"ht to confidentialityF no client infor*ation *ay be disclosedto others 'ho are not *e*bers of the la'yerJs sole practice. The sharin" of client infor*ation is prohibited unless the client consents to such an echan"e.

In officesharin" arran"e*entsF either the office procedures or layout *ust be such that noconfidential infor*ation is re!ealed. At the outset of the retainerF the client *ust be ad!ised ofFand consent to the sharin" of infor*ation that *ay result fro* the shared offices.

8f particular concern in this situationF is the fact that the files of both la'yers are stored in thesa*e filin" cabinet. nless 5ordon ta/es steps to properly ad!ise his clientsF obtain theirconsentF and chec/ for potential conflicts that *ay arise as a result of the shared file cabinetF5ordon *ay ris/ breachin" confidential infor*ationF and bein" the subHect of a client co*plaintfor professional *isconduct. &e should ha!e used a separate filin" cabinet for his clientsG filesand ad!ised his clients of all the i*plication of his officesharin" arran"e*ents.

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Randall enters 5ordonJs office to announce that one of 5ordonJs clientsF +a*anthaF has dropped by to deli!er docu*ents re"ardin" an ur"ent *atter. 5ordon is unable to deal 'ith the *atteri**ediately as he has to be in court. &e instructs Randall to obtain copies of +a*anthaJs

docu*ents and to "i!e her an appoint*ent for the follo'in" day. Randall briefly spea/s to+a*antha in the reception area as they discuss and re!ie' her docu*ents and "i!es her a ti*e toreturn to *eet 'ith 5ordon the follo'in" day.

Question 10 of 12

)hat steps should 5ordon ha!e ta/en to ensure all *e*bers of his la' fir* co*plied 'ith theobli"ation to protect client infor*ation#

OAns'er:

If others 'ere 'aitin" in the reception area 'hen Randall spo/e 'ith +a*anthaF he *ay ha!e breached the fir*Js obli"ation to *aintain confidential +a*anthaJs infor*ation. 5ordon shouldha!e properly trained Randall and i*ple*ented a policy that no confidential client infor*ationshould be discussed in the reception or any other public area. These and other professionalconduct obli"ations of la' fir* staff can be incorporated into a fir* procedure *anual andaddressed throu"h e*ployee trainin".

+o*e la'yers ta/e a further step and ha!e their support staff *e*bers enter into confidentialitya"ree*ents. At *ini*u*F la'yers should i*ple*ent office procedures and policies to ensurethat client confidentiality is *aintainedF such as a prohibition a"ainst discussin" client *atters inareas 'here such con!ersations *ay be o!erheard by other clients or !isitors to the fir*.

Before 5ordon lea!es the officeF Randall copies a nu*ber of client docu*ents on a co*puterthu*b dri!e for 5ordon to ta/e ho*e to 'or/ on that e!enin". 5ordon places the thu*b dri!e inhis coat poc/et and 'al/s t'o bloc/s to the courthouse.

In the barristersJ loun"eF he *eets a collea"ueF @anF and as/s her for ad!ice on one of his client*atters. 5ordon and @an discuss the client *atter in detail and continue their discussion as theylea!e the courthouse. 8n the bus ho*eF 5ordon recei!es a call fro* a for*er client 'ho 'antshi* to be"in 'or/in" on a ne' *atter. 5ordon briefly discusses the issues 'ith the clientF and5ordon in!ites hi* to *a/e an appoint*ent 'ith Randall at the office.

Question 11 of 12

)hat are the ris/s of co**unicatin" 'ith collea"ues and client *atters in this *anner#

OAns'er:

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Althou"h it is not unco**on for la'yers to consult 'ith collea"ues on ho' to deal 'ith client *atters"enerallyF or to discuss *atters as hypothetical casesF it is al'ays i*portant not to re!eal confidentialclient infor*ation in the process. Da'yers should a!oid such discussions in public areas such as barristersG loun"esF libraries or halls. +i*ilarlyF la'yers should ne!er discuss client *atters o!er cell phones in public areas.

Thu*b dri!e: the thu*b dri!e placed in a coat poc/et can be easily lostF *isplaced or stolen.

8n the 'ay ho*eF 5ordon ta/es a nu*ber of "ar*ents to the dry cleanersF includin" his coat.The net dayF he "ets a phone call fro* the cleanersF tellin" hi* that they ha!e found his flashdri!e in his coat poc/et.

Question 12 of 12

)hat precautions should 5ordon ha!e ta/en to protect confidential client infor*ation#

OAns'er:5ordon should ha!e adopted the practice of carefully storin" portable hard dri!es. &e should also ha!eused encryption soft'are to protect confidential infor*ation contained on the dri!e.

I%proing your Written Co%%unication ')ills

A. +upple*entary )ritin" (ercises

Question 1

Follo'ing t&e p$inciples discussed in )tyle ips $e;fo$at and ip$oe t&is passage:

The a*end*ent thus eplains the circu*stances under 'hich a lender 'ho has acCuiredso*ethin" *ore than its initial security interest in a property 'ill be cate"oriEed as an So'ner oroperator> for en!iron*ental liability purposes. This is achie!ed by settin" out the reCuire*entsthat *ust be *et before liability 'ill be i*posed.

,irstF the lender in this position *ust ta/e actual Spossession> of the !essel or facility. ThisreCuire*ent is open to interpretationF as the ter* Spossession> is not defined. nder onereadin"F Spossession> calls for so*ethin" *ore than the lender ta/in" si*ple title or acCuirin"one of the additional interests set out abo!e. It also calls for so*e tan"ible presence on the property. This *i"ht consist of anythin" fro* puttin" up a protecti!e fence to assu*in" andcontinuin" the facilityGs on"oin" operations. nder an alternati!e readin"F ta/in" Spossession>*ay not be an additional reCuire*ent 'here possession necessarily results fro* ta/in" title or

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o'nershipF as in the case of foreclosure. It 'ould represent an additional reCuire*ent only'here the lender has acCuired SoperationF *ana"e*entF or control> 'ithout acCuirin"o'nership. nder this constructionF the le"islationJs inclusion of the ter* often 'ould appearsuperfluous. Readin" the plain lan"ua"e of the a*end*entF thenF the first interpretation *a/es*ore senseF as the Spossession> reCuire*ent clearly has been set apart in the a*end*ent as a

separate criterion. ,or these purposesF it is i*portant to note the fact that this a*end*ent 'asenacted to achie!e clarity and pro!ide lenders 'ith a *ore precise idea of 'hat acti!ities they*ay underta/e 'ithin the ee*ption. ThusF it should be construed narro'lyF 'ith a*bi"uouster*s construed in fa!our of lender protection.

The second pron" of the a*end*entJs t'opart test for liability is 'hether the lender eercisesSactual *ana"erial control...>

CO##E78D

The first !ersion is readerhostile4no "raphic de!icesF little 'hite spaceF no !isible structure.

)uggested 8ns'e$:

(transitional and connective devices have been highlighted)

The a*end*ent thus eplains the circu*stances under 'hich a lender 'ho has acCuiredso*ethin" *ore than its initial security in a property 'ill be cate"oriEed as an So'ner oroperator> for en!iron*ental liability purposes. Before liability will be imosed! however! twore"uirements must be met#

($) the lender must ta%e actual ossession of the roerty&

(') the lender must eercise actual managerial control over it

($) *ctual Possession

The lender *ust ta/e actual S ossession> of the !essel or facility. Because the a*end*ent doesnot define the ter* S ossessionF> this reCuire*ent is open to two possible readin"s.

nder the first and more li%ely reading F S ossession> calls for so*ethin" *ore than the lenderta/in" si*ple title. +t also calls for so*e tan"ible presence on the property such as puttin" up a

protecti!e fence or continuin" the facilityGs on"oin" operations.

nder the second and less li%ely reading F ta/in" S ossession> *ay not be an additionalreCuire*ent if it is a necessary conseCuence of ta/in" title or o'nershipF as in the case offoreclosure. Possession 'ould represent an additional reCuire*ent only 'hen the lender hasacCuired SoperationF *ana"e*entF or control> 'ithout acCuirin" o'nership. nder this lessli%ely reading F the le"islatureGs inclusion of the ter* S ossession> 'ould often be superfluousand thereby incongruent 'ith the dictates of lain language.

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Congruent 'ith the lain language of the a*end*entF the first reading *a/es *ore sense inthat S ossession> is set apart as a separate criterion and is allo'ed to function as one. Becausethe a*end*ent 'as enacted to "i!e lenders a clearer idea of 'hat acti!ities are ee*pt fro*en!iron*ental liabilityF the a*end*ent should be construed narro'ly. Thus any a*bi"uouster*s should be construed in fa!our of protectin" the lender.

(') *ctual ,anagerial Control

The second pron" of the a*end*entGs t'opart test for liability is 'hether the lender eercisesSactual managerial control .>

CO##E78D

The second !ersion has a !isible structure that adds coherence and control.

Conunctie 8de$*s and )entence 6a$iation

orrect the errors in the follo'in" sentences. Then try a re'rite ?if appropriate sho'in"!ariation in sentence style.

Question 2a

The ar"u*ent 'as ai*ed at the defendantJs la'yerF nonethelessF the respondentJs la'yer see*ed

to react the *ost.

8ns'e$:

The ar"u*ent 'as ai*ed at the defendantJs la'yer A nonet&eless the respondentJs la'yer see*edto react the *ost.

)uggest 8ns'e$:

8lt&oug& the ar"u*ent 'as ai*ed at the defendantJs la'yer the respondentJs la'yer see*ed toreact the *ost.



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Question 2*

I a* a'areL ho'e!erF that the docu*ents arri!ed later than scheduled.

OAns'er:I a* a'are &o'ee$ that the docu*ents arri!ed later than scheduled.



Question 2c

I ha!e to 'or/ hard at i*pro!in" *y ,renchF ne!ertheless I enHoy the subHect.

8ns'e$:

I ha!e to 'or/ hard at i*pro!in" *y ,renchA nee$t&eless I enHoy the subHect.

)uggested 8ns'e$:

8lt&oug& I ha!e to 'or/ hard at i*pro!in" *y ,renchF I enHoy the subHect.



Question 2d

8ur calculations 'ere ri"ht ho'e!er our assu*ptions 'ere 'ron".

8ns'e$:

8ur calculations 'ere ri"htA &o'ee$ our assu*ptions 'ere 'ron".

)uggested 8ns'e$:

8ur calculations 'ere ri"ht *ut our assu*ptions 'ere 'ron".

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Question 2e

+he filled in the application on MondayF subseCuentlyF she 'as in!ited to an inter!ie' on ,riday.

8ns'e$:

+he filled in the application on MondayA su*seuently she 'as in!ited to an inter!ie' on,riday.

)uggested 8ns'e$:

aing filled in an application on Monday she 'as t&en in!ited to an inter!ie' on ,riday.

H$onouns: C&oose t&e co$$ect p$onoun in t&e follo'ing sentences:

Question 3a

,i!e of ?'eF usF oursel!es too/ a cab to the hearin".

8ns'e$:,i!e of us too/ a cab to the hearin".


Question 3*


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Question 3c

?)hoF )ho* can I partner 'ith on this proHect#

8ns'e$:

)ith '&o can I partner on this proHect#


Question 3d

)e disco!ered that it 'as ?theyF the*F the*sel!es 'ho started the fire.

8ns'e$:

)e disco!ered that it 'as t&ey 'ho started the fire.


Question 3e

I a* tired of *a/in" ecuses for ?hi*F his not bein" a!ailable.

8ns'e$:

I a* tired of *a/in" ecuses for &is not bein" a!ailable.

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"est #ourself A. Identify the Issues

)cena$io 1 of 3

Bac/"round: @ane is a cri*inal defence la'yer. hristineF 'ho is 1F has been char"ed 'itha""ra!ated assault. &er fatherF BobF called @aneJs office to set up an appoint*ent to discussretainin" @ane. A conflict of interest chec/ 'as done usin" @aneJs conflict chec/in" syste*. Thisis @aneJs first inperson *eetin" 'ith her client.

@ane: &elloF hristine and Bob. Det *e be"in by sayin"F hristineF that'hate!er you tell *e is confidential. It does not lea!e this roo* unlessyou 'ant it to. &o' can I help you today#

Bob: As I said on the phoneF hristine has been char"ed 'ith a""ra!atedassault. +he 'as released on bail. )e Hust 'ant to resol!e this thin" asCuic/ly as possible.

hristine: 7adF I didnJt do anythin" 'ron". Trish started it all.

Bob: You should start ta/in" so*e responsibility for 'hat you do.

hristine: ItJs TrishJs fault. +he "rabbed *y pen/nife.

@ane: hristine and BobF let *e stop you ri"ht there. TodayF I Hust 'ant to "etso*e !ery "eneral infor*ation. I donJt 'ant to "et into the detailsFhristineF as I 'ant to see 'hat the ro'n Attorney has to say. 8nce Iha!e that infor*ationF 'e can *eet a"ain. Tell *eF thou"hF is the

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co*plainant in the hospital# A""ra!ated assault is an indictable offenceand is pretty serious.

hristine: )hat do you *eanF Sco*plainant#S Are you tal/in" about Trish#

@ane: YesF sorry.

hristine: +heJs a 'hiner. +he Hust has so*e cuts.

Bob: ould 'e tal/ about fees for a *inute. &o' *uch is this "oin" to cost*e#

@ane: )ellF "i!en your inco*eF le"al aid is not a!ailable. You ha!e a choiceFeither a bloc/ fee or an hourly rate of U%$.$$. 8n top of thatF you 'illha!e to pay for disburse*ents.

Bob: 5uess 'e ha!e no choice. +o 'here do 'e "o fro* here#

@ane: IGd li/e to see the release conditions. 7o you ha!e those# AlsoF I need to

"et disclosure fro* the ro'n Attorney. If there are 'itnessesF I 'illneed to inter!ie' the*. )ere there any# There could be a need forforensic testin". I donGt /no' if anyone has ta/en photos. 7o you ha!ethe net ourt appearance date#

Bob: @anuary 1$th.

@ane: I 'ill be in touch 'ith you in the net fe' 'ee/s once I ha!e disclosurefro* the ro'n.

Bob: 7o I "et anythin" in 'ritin" that I can ta/e 'ith *e# 7o I ha!e to si"nanythin".

@ane:


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to /no'.

Identify the ethical and practice *ana"e*ent issues raised in this scenario and eplain ho' you*i"ht ha!e handled the inter!ie'.

#odel Explanation:

a. 97E69E%97G E CI9E7 97 E F8E@) HE)E7CE

%&o is t&e Client

hristine is the person char"ed 'ith a cri*inal office and she is the clientF re"ardless of 'ho is payin" her le"al fees. A la'yer and client relationship presupposes that the client has thereCuisite *ental ability to *a/e decisions about his or her le"al affairs and to "i!e the la'yer

instructions ?see o**entary to subrule %.$%?- of the Rules. )hile a clientGs ability to *a/edecisions depends on such factors as a"eF intelli"ence and eperienceF youn" people are"enerally able to instruct a la'yer. (!en 'here clients are under a disabilityF subrule %.$%?-reCuires that =Wthe la'yer shallF as far as reasonably possibleF *aintain a nor*al la'yer andclient relationship.>

Also see The lient +er!ice and o**unication 5uidelineF %.3.%F lients under 7isabilities andTheir Da'ful Representati!esF 'hich addresses clients underdisabilities.

Hossi*le %aie$ of )olicito$;Client H$iilege J Confidentiality

)hen a client attends at a la'yerGs office 'ith a fa*ily *e*berF the la'yer should *eet 'ith theclient alone to eplainF in plain lan"ua"eF solicitorclient pri!ile"e as 'ell as to discussconfidential infor*ation. In ter*s of solicitorclient pri!ile"eF it is i*portant for the client tounderstand that the presence of a third partyF here the fatherF at the inter!ie' *ay constitute a'ai!er of solicitorclient pri!ile"e. This could *ean thatF for ea*pleF the ro'n Attorney couldcall Bob as a trial 'itness to testify as to the substance of the inter!ie'.

)hile solicitorclient pri!ile"e is the le"al ri"ht of an indi!idual to refuse to disclose or 'ithholdrele!ant infor*ation fro* the other sideF fro* a court or a tribunal about co**unications 'ithhis6her la'yer to obtain le"al ad!iceF confidentiality is different. It is a fiduciary and an ethicalduty and co!ers *ore infor*ation that Hust co**unications bet'een the la'yer and the client

related to the "i!in" or recei!in" of le"al ad!ice. +ubrule %.$3?1 statesF =A la'yer at all ti*esshall hold in strict confidence all infor*ation concernin" the business and affairs of theclientW.and shall not di!ul"e any such infor*ation unless epressly or i*pliedly authoriEed bythe client or reCuired by la' to do so.>

+o*e youn" people *ay 'ant their parents present durin" the inter!ie'. If a parent is presentFho'e!erF the youn" person *ay be less open 'ith the la'yer and *ay be un'illin" to re!ealsensiti!e or e*barrassin" infor*ation. A la'yer representin" a youn" person *ust ne!er for"et

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that the youn" person is the client and that the fiduciary and ethical duty of confidentiality iso'ed to that clientF re"ardless of 'ho *i"ht be payin" the le"al fees. nder the Rules of Professional Conduct F confidential infor*ation *ay not be disclosed to the parentF or to anyoneelseF unless the client so authoriEes or unless the disclosure is Hustified or per*itted undersubrules %.$3?%?2 of the Rules.

Kiscussions 8*out Fees

In cases 'here a parent is payin" for the feesF so*e infor*ation about billin" and fees *ay ha!eto be disclosed to the parent. The la'yer could do this in a separate discussion 'ith the client andthe parent.

5round rules for disclosure of infor*ation should be established at the initial sta"e of theretainer and set out in a retainer a"ree*ent or letter. This ensures that there is no*isunderstandin" as to 'hat infor*ation canF and shouldF be pro!ided to the parent payin" theyoun" personGs fees.

)uggestions fo$


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• 'ithdra'al or ter*ination of ser!ices

• basis on 'hich fees 'ill be setF and the freCuency of billin" of fees and disburse*ents

• net court date.

As noted under = Discussion about Fees” abo!eF "round rules for disclosure should be set out inthe retainer a"ree*ent or letter.

,or *ore infor*ation on retainersF see =(stablishin" Retainers> a!ailable on the Da' +ocietyGsno'led"e Tree.

c. L)E OF IEG8IE)E

@ane uses le"al ter*inolo"y such as =co*plainant> and =indictable offence>. )here possibleFsuch ter*s should be a!oided. If le"al ter*inolo"y is usedF the la'yer should eplain the*eanin" of such ter*inolo"y in plain lan"ua"e.

d. MEEH97G E CI9E7 97FO#EK

Client Service and Communication uideline

The lient +er!ice and o**unication 5uidelineF %.13F Ti*ely and (ffecti!e Da'yer liento**unications outlines that la'yers shouldF a*on"st other thin"sF discuss 'ith clients the*anner of co**unication bet'een the*F ho' the la'yer 'ill /eep the client apprised of the*atter on an on"oin" basisF the freCuency of reportin" and the esti*ated ti*e it 'ill ta/e for thela'yer to respond to callsF e*ailsF letters or other co**unications.

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*essa"es on your office *achine and no one bothered to "et bac/ to *e.Your assistant didnJt e!en apolo"iEe 'hen I finally "ot a real person onthe other end of the line. )hat if I *issed so*e i*portant deadline#

&arold: You ha!e to appreciate that I ha!e a !ery busy practice here.


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after all *y years sla!in" for the*. )hose side are you onF any'ay#

&arold: )hat proof do you ha!e that the office 'as *a/in" you sic/#

,ran/: Proof 4 ho' do you epect *e to ha!e proof# You /no'F I donJt thin/you understand *y proble*. IJ* "oin" to find *yself a la'yer 'hodoes.

arold has no additional contact with Fran"# nor does he send any co$$unication

confir$ing that he has not been retained to act for Fran"%

Identify the ethical and practice *ana"e*ent issues raised in this scenario and eplain ho' you*i"ht ha!e handled the inter!ie'.

#odel Explanation

-a. CO#HEE7CD ( EL797G HO7E #E))8GE)

Subrule '.$($)

Assu*in" that ,ran/ 'as correct and his calls had not been returnedF this raises possibleco*petency issues under Rule %F Relationship to lients. The definition of a =co*petent la'yer>isF inter alia# one 'ho *ana"es oneGs practice effecti!ely ?para. %.$1?1?i and 'ho perfor*s all

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LSUC Prof Resp Course - Questions