CODE OF

PROFESSIONAL
CONDUCT
 THE CANADIAN
BAR ASSOCIATION

CODE OF
PROFESSIONAL
CONDUCT

ADOPTED BY COUNCIL, AUGUST 2004 AND FEBRUARY 2006

CODE OF PROFESSIONAL CONDUCT

ISBN 1-897086-28-8

Published by the Canadian Bar Association

The CBA gratefully acknowledges the generous financial support of the Canadian Bar
Law for the Future Fund.

Ethics and Professional Issues Committee

Guylène Beaugé (2000-2004)
Kathryn A. Berge, Q.C. (1995-2002)
Louis Charette (2004-2006)
David C. Day, Q.C. (2004-2006)
Neil G. Gabrielson, Q.C. (2000-2002, 2004-2005)
Gregory D. Goulin, Q.C. (2000-2002)
Lois R. Hoegg, Q.C. (2000-2004)
Jacqueline L. King (2004-2006)
Peter Macdonald (2002-2004)
Priti Shah (2002-2004)
Alan J. Stern, Q.C. (2002-2006)

Counsel to the Committee

Gavin A. MacKenzie

Staff Liaison
Tamra L. Thomson, Director, Legislation and Law Reform
Richard Ellis, Legal Policy Analyst
Kerri Froc, Legal Policy Analyst

Production
CBA Communications

First printing 1974

Revised and adopted by Council, August 1987
Revised edition 1996
Revised edition 2006: amendments adopted by Council, August 2004 and February
2006

© Canadian Bar Association 2006

Suite 500, 865 Carling Avenue
Ottawa ON K1S 5S8
info@cba.org
Available online at www.cba.org

Principles of Civility for Advocates © The Advocates’ Society. Reprinted with

permission.

ALL RIGHTS RESERVED

No portion of this book may be reproduced in any form or by any means without the
written permission of the publisher.

ii
 TABLE OF CONTENTS
Page

President’s Message . . . . . . . . . . . . . . . . . . . .v
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii
Interpretation . . . . . . . . . . . . . . . . . . . . . . .xiii
Chapter I Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Chapter II Competence and Quality of Service . . . . . .5
Chapter III Advising Clients . . . . . . . . . . . . . . . . . . . . . .11
Chapter IV Confidential Information . . . . . . . . . . . . . .17
Chapter V Impartiality and Conflict of Interest Between
Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Chapter VI Conflict of Interest Between Lawyer and
Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Chapter VII Outside Interests and the Practice of Law . .49
Chapter VIII Preservation of Clients’ Property . . . . . . . .53
Chapter IX The Lawyer as Advocate . . . . . . . . . . . . . . .57
Chapter X The Lawyer in Public Office . . . . . . . . . . .71
Chapter XI Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
Chapter XII Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . .81
Chapter XIII The Lawyer and the Administration of
Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
Chapter XIV Advertising, Solicitation and Making Legal
Services Available . . . . . . . . . . . . . . . . . . . . .91
Chapter XV Responsibility to the Profession
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . .95
Chapter XVI Responsibility to Lawyers and Others . . . .99
Chapter XVII Practice by Unauthorized Persons . . . . . .103
Chapter XVIII Public Appearances and Public Statements
by Lawyers . . . . . . . . . . . . . . . . . . . . . . . . .107
Chapter XIX Avoiding Questionable Conduct . . . . . . .111

iii
Chapter XX Non-Discrimination . . . . . . . . . . . . . . . . .115
Chapter XXI The Lawyer as Mediator . . . . . . . . . . . . . .123
Chapter XXII Independence of the Bar . . . . . . . . . . . . . .125
Appendix - Principles of Civility For Advocates . . . . . . . . . .129
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
Part I - Relations with Opposing Counsel . . . . . . . . . . .129
Part II - Communications with Others . . . . . . . . . . . . .134
Part III - Trial Conduct . . . . . . . . . . . . . . . . . . . . . . . . . .136
Part IV - Counsel’s Relations with the Judiciary . . . . . .140
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147

iv
 PRESIDENT’S MESSAGE

Standards of professional ethics form the backdrop for

everything lawyers do. In adhering to codes of conduct, we
uphold the long-standing values of our profession and ensure
protection of the public. Some rules, such as the duty to act
with integrity, will never change. Other rules must be revised
from time to time to reflect changes in our society and in the
way lawyers work.

In 2000, the CBA’s Standing Committee on Ethics and

Professional Issues was tasked with modernizing the model
Code of Professional Conduct. The Committee undertook
extensive research and several consultations with the
profession, to identify issues and formulate recommendations.
In August 2004 and in February 2006, CBA Council
unanimously adopted the changes reflected herein.

The task could not be accomplished without the contributions

of many people. On behalf of the CBA, I would like to express
my gratitude to those who dedicated time and expertise to the
project:

• Committee members Guylène Beaugé, Kathryn A.

Berge, Q.C., Louis Charette, David C. Day, Q.C., Neil
G. Gabrielson, Q.C., Gregory D. Goulin, Q.C., Lois R.
Hoegg, Q.C., Jacqueline L. King , Peter Macdonald,
Priti Shah and Alan J. Stern, Q.C.

• Counsel to the Committee, Gavin A. MacKenzie of

Heenan Blaikie LLP.

• Editors Elizabeth F. Judge (English) and Patrice

Deslauriers (French) and their assistants.

• Tamra L. Thomson, Richard Ellis and Kerri A. Froc,

staff lawyers who steered the project from the CBA
Legal and Governmental Affairs Department.

v
 • Joanna Fine, who updated the footnote references to the
Codes of Conduct of Canadian jurisdictions and the
ABA Model Code and Model Rules.

• C. Paul Daniels, a retired member of the Law Society of

British Columbia, who devoted a good deal of time and
effort to improving the drafting of the proposed
revisions.

• The many members and organizations who, throughout

the project, made thoughtful and constructive
submissions on possible revisions to the Code.

The CBA could not have undertaken this project without

generous financial assistance from the Canadian Bar Law for
the Future Fund. Since its inception, the LFFF has helped
finance more than 100 projects that will help shape a better
future for lawyers and the law. I encourage you to make a
contribution today.

The CBA is justifiably proud of the Code of Professional

Conduct, as a contribution to the delivery of competent legal
services according to the highest ethical traditions of our
profession.

Brian A. Tabor, Q.C.

President
Ottawa, March 2006

vi
 PREFACE 1

The legal profession has developed over the centuries to meet

a public need for legal services on a professional basis.
Traditionally, this has involved the provision of advice and
representation to protect or advance the rights, liberties and
property of a client by a trusted adviser with whom the client
has a personal relationship and whose integrity, competence
and loyalty are assured.2

In order to satisfy this need for legal services adequately,

lawyers and the quality of service they provide must command
the confidence and respect of the public. This can only be
achieved if lawyers establish and maintain a reputation for
both integrity and high standards of legal skill and care. The
lawyers of many countries in the world, despite differences in
their legal systems, practices, procedures and customs, have all
imposed upon themselves substantially the same basic
standards. Those standards invariably place their main
emphasis on integrity and competence.

In Canada, the provincial legislatures have entrusted to the

legal profession through its governing bodies responsibility for
maintaining standards of professional conduct and for
disciplining lawyers who fail to meet them. Generally, the
preparation and publication of codes of ethics and professional
conduct have been left to the profession. It is a responsibility
that must be accepted and carried out by the profession as a
whole.

The pertinent laws in Canada use various terms to describe

conduct that subjects the lawyer to discipline, for example,
“professional misconduct”, “conduct unbecoming” and “acts
derogatory to the honour or dignity of the Bar”. Some statutes
also provide that disciplinary action may be taken if a lawyer is
convicted of an indictable offence or for “misappropriation or
wrongful conversion” or “gross negligence” or for conduct
“incompatible with the best interests of the public or the

vii
members of the [Law] Society” or for breach of the applicable
statute itself or the rules made under it.3

With few exceptions the statutes do not specify the kinds of

conduct that will subject a lawyer to discipline. For its part, the
Code does not attempt to define professional misconduct or
conduct unbecoming; nor does it try to evaluate the relative
importance of the various rules or the gravity of a breach of
any of them. Those functions are the responsibility of the
various governing bodies. The rules that follow are therefore
intended to serve as a guide, and the commentaries and notes
appended to them are illustrative only. By enunciating
principles of what is and is not acceptable professional
conduct, the Code is designed to assist governing bodies and
practitioners alike in determining whether in a given case the
conduct is acceptable, thus furthering the process of self-
government.

The essence of professional responsibility is that the lawyer

must act at all times uberrimae fidei, with utmost good faith to
the court, to the client, to other lawyers, and to members of
the public. Given the many and varied demands to which the
lawyer is subject, it is inevitable that problems will arise. No
set of rules can foresee every possible situation, but the ethical
principles set out in the Code are intended to provide a
framework within which the lawyer may, with courage and
dignity, provide the high quality of legal services that a
complex and ever-changing society demands.4

The extent to which each lawyer’s conduct should rise above

the minimum standards set by the Code is a matter of
personal decision. The lawyer who would enjoy the respect
and confidence of the community as well as of other members
of the legal profession must strive to maintain the highest
possible degree of ethical conduct. The greatness and strength
of the legal profession depend on high standards of
professional conduct that permit no compromise.

viii
The Code of Professional Conduct that follows is to be
understood and applied in the light of its primary concern for
the protection of the public interest. This principle is implicit
in the legislative grants of self-government referred to above.
Inevitably, the practical application of the Code to the diverse
situations that confront an active profession in a changing
society will reveal gaps, ambiguities and apparent
inconsistencies.5 In such cases, the principle of protection of
the public interest will serve to guide the practitioner to the
applicable principles of ethical conduct and the true intent of
the Code.

1The footnotes relate the provisions of the Code to pertinent earlier Codes, rulings,
by-laws, statutes, judicial dicta, text books and articles, as well as to certain other
materials They are selective, not exhaustive, and merely supplement the text. For
abbreviations and bibliography, see pp. 143 and 145.
2“The core of the proposition is that problems of...rights or property call for a
personal relationship with a trusted adviser, whose discretion is absolute, who serves
no master but his client, and whose competence is assured. The codes and traditions
of the professions who supply these services support the basic proposition. They also
display the uniformity that its truth would lead one to expect.” Bennion, p. 16.
3 Abstract of disciplinary provisions:
Alberta: Legal Profession Act, R.S.A. 2000, c. L-8.
s. 49 “conduct … incompatible with the best interests of the public or of the
members of the Society”
“tends to harm the standing of the legal profession generally”
British Columbia: Legal Profession Act, S.B.C. 1998, c. 9.
s. 38 “professional misconduct”
“conduct unbecoming a lawyer”
“breach of this Act or the rules”
s. 36 “convicted of an offence that may only be prosecuted on indictment”
Manitoba: Legal Profession Act, C.C.S.M., c. L-107.
s. 63 “professional misconduct”
“conduct unbecoming a lawyer or student”
New Brunswick: Law Society Act, 1996, S.N.B. 1996, c. 89.
s. 38 “professional misconduct”
“conduct unbecoming a member of the Society”
“acting in breach of this Act or the rules”
Newfoundland: Law Society Act, 1999, S.N.L. 1999, c. L-9.1.
s. 41 “professional misconduct”
“conduct unbecoming a member of the Society”

ix
 “acting in breach of this Act or the rules”
“failing to adhere to the Code of Professional Conduct”
Nova Scotia: Legal Profession Act, S.N.S. 2004, c. 28.
s. 33 “professional misconduct”
“conduct unbecoming a lawyer”
Ontario: Law Society Act, R.S.O. 1990, c.L-8, as am.
s. 33 “professional misconduct”
“conduct unbecoming a barrister or solicitor”
“conduct unbecoming a student member”
Prince Edward Island: Legal Profession Act, R.S.P.E.I. 1988, c. L-6.1.
s. 37 “conduct unbecoming a member or professional misconduct”
“conduct…contrary to the best interests of the public or of the legal
profession”
“likely to harm the standing of the legal profession”
“contrary to any code or standard of ethics adopted by the society”
“misconduct by, or conduct unbecoming, an articled clerk”
Quebec: An Act respecting the Barreau du Québec, R.S.Q., c. B-l.
s. 122 “position or an office...incompatible with the practice or dignity of the
profession of advocate”
Saskatchewan: Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1, as am.
ss. 2 and 40 “conduct unbecoming”
England: Cordery on Solicitors (7th ed., 1981), p. 333.
“...because he has been guilty of an act or omission for which the Act or some
other statute prescribes that penalty, or because he has committed an act of
misconduct which renders him unfit to be permitted to continue in practice.”
(at p. 335): “Misconduct which makes a solicitor unfit to continue in practice
may be divided into three kinds: criminal conduct, professional misconduct
and unprofessional conduct.”
(at p. 336): “The jurisdiction is not limited to cases where the misconduct
charged amounts to an indictable offence, or is professional in character, but
extends to all cases where the solicitor’s conduct is ‘unprofessional’, i.e., such as
renders him unfit to be an officer of the court.”
“Is it a personally disgraceful offence or is it not? Ought any respectable
solicitor to be called upon to enter into that intimate discourse with [the
offender] which is necessary between two solicitors even though they are
acting for opposite parties?” per Lord Esher M.R. in Re Weare (1893), 2 Q.B.
439 at 446 (C.A.).
“Counsel...takes the position that the expressions [unprofessional conduct and
professional misconduct] are synonymous. I agree...that the phrases are often
used interchangeably but cannot agree that this is always so... Accepting as I do
that the terms are not synonymous...” per McKay J. in Re Novak and Law Society
(1973) 31 D.L.R. (3d) 89 at 102 (B.C.S.C.).
4 “The law and its institutions change as social conditions change. They must change
if they are to preserve, much less advance, the political and social values from which
they derive their purposes and their life. This is true of the most important of legal

x
institutions, the profession of law. The profession, too, must change when
conditions change in order to preserve and advance the social values that are its
reason for being.” Cheatham, Availability of Legal Services: The Responsibility of the
Individual Lawyer and the Organized Bar (1965) 12 U.C.L.A. L. Rev. 438, 440.
5 “It is not possible to frame a set of rules which will particularize all the duties of
the lawyer in all the varied relations of his professional life...”, Sask. Preamble.

xi
xii
 INTERPRETATION

In this Code the field of professional conduct and ethics is

divided into twenty-two chapters, each of which contains a
short statement of a rule or principle followed by commentary
and notes. Although this division gives rise to some
overlapping of subjects, the principle of integrity enunciated in
Chapter I underlies the entire Code, so that some of the rules
in subsequent chapters represent particular applications of the
basic rule set out in Chapter I. Again there are instances where
substantially the same comment appears more than once. Such
duplication is desirable to provide clarity and emphasis and to
reduce cross-references.

The commentary and notes to each rule discuss the ethical

considerations involved, explanations, examples, and other
material designed to assist in the interpretation and
understanding of the rule itself. Each rule should therefore be
read with and interpreted in the light of the related
commentary and notes.

Certain terms used in the Code require definition:

“client” means a person on whose behalf a

lawyer renders or undertakes to render
professional services;

“court” includes conventional law courts and

generally all judicial and quasi-judicial
tribunals;

“Governing Body” means the body charged under the laws

of a particular jurisdiction with the duty
of governing the legal profession (e.g.,
the Benchers, General Council,
Convocation or Council);

xiii
“lawyer” means an individual who is duly
authorized to practise law;

“legal profession” refers to lawyers collectively;

“person” includes a corporation or other legal

entity, an association, partnership or
other organization, the Crown in right
of Canada or a province or territory and
the government of a state or any political
subdivision thereof.

The term “lawyer” as defined above extends not only to those

engaged in private practice but also to those who are employed
by governments, agencies, corporations and other
organizations. An employer-employee relationship of this kind
may give rise to special problems in the area of conflict of
interest,1 but in all matters involving integrity2 and generally in
all professional matters, if the requirements or demands of the
employer conflict with the standards declared by the Code, the
latter must govern.

1 See Chapter V.
2 See Chapter I. The involvement of various lawyers in the Watergate affair most
graphically illustrates some of the hazards.

xiv
 CHAPTER I

INTEGRITY

RULE

The lawyer must discharge with integrity all duties owed to

clients, the court or tribunal or other members of the
profession and the public.1

Commentary

Guiding Principles

1. Integrity is the fundamental quality of any person who

seeks to practise as a member of the legal profession. If the
client is in any doubt about the lawyer’s trustworthiness, the
essential element in the lawyer-client relationship will be
missing. If personal integrity is lacking the lawyer’s usefulness
to the client and reputation within the profession will be
destroyed regardless of how competent the lawyer may be.2

2. The principle of integrity is a key element of each rule of

the Code.3

Disciplinary Action

3. Dishonourable or questionable conduct on the part of the

lawyer in either private life or professional practice will reflect
adversely upon the lawyer, the integrity of the legal profession
2 Code of Professional Conduct

and the administration of justice as a whole. If the conduct,

whether within or outside the professional sphere, is such that
knowledge of it would be likely to impair the client’s trust in
the lawyer as a professional consultant, a governing body may
be justified in taking disciplinary action.4

Non-Professional Activities

4. Generally speaking, however, a governing body will not be

concerned with the purely private or extra-professional
activities of a lawyer that do not bring into question the
integrity of the legal profession or the lawyer’s professional
integrity or competence.

5. Illustrations of conduct that may infringe the Rule (and

often other provisions of this Code) include:

(a) committing any personally disgraceful or morally

reprehensible offence that reflects upon the lawyer’s
integrity (of which a conviction by a competent court
would be prima facie evidence);
(b) committing, whether professionally or in the lawyer’s
personal capacity, any act of fraud or dishonesty, e.g.,
by knowingly making a false tax return or falsifying a
document, whether or not prosecuted for so doing;
(c) making an untrue representation or concealing a
material fact from a client, with a dishonest or
improper motive;
(d) taking advantage of the youth, inexperience, lack of
education or sophistication, ill health, or
unbusinesslike habits of a client;
(e) misappropriating or dealing dishonestly with a client’s
money or other property;
(f) receiving money or other property from or on behalf
of a client for a specific purpose and failing, without
the client’s consent, to pay or apply it for that
purpose;
 Code of Professional Conduct 3

(g) knowingly assisting, enabling or permitting any

person to act fraudulently, dishonestly or illegally;
(h) failing to be absolutely frank and candid in all dealings
with the Court or tribunal, fellow lawyers, and other
parties to proceedings, subject always to not betraying
the client’s cause, abandoning the client’s legal rights
or disclosing the client’s confidences; and
(i) failing to honour the lawyer’s word when pledged
even though, under technical rules, the absence of
writing might afford a legal defence.

1 ABA-MC Canon 1; B.C. 2; N.B. 1-R, 1-C.1; Ont. 6.01(1); N.S. 1-R; Que.
2.00.01, 3.02.01. Oxford English Dictionary (2d ed.) s.v. “integrity”: “Soundness of
moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair
dealing; uprightness, honesty, sincerity.”
2 Ont. 6.01(1) Commentary; N.S. 1.1.
3 N.B. 1-C.2.
4 ABA-MC DR 1-101; N.B. 1-C.3; N.S. 1.2.
4 Code of Professional Conduct
 Code of Professional Conduct 5

CHAPTER II

COMPETENCE AND QUALITY

OF SERVICE

RULE

1. The lawyer owes the client a duty to be competent to

perform any legal services undertaken on the client’s behalf.1

2. The lawyer should serve the client in a conscientious,

diligent and efficient manner so as to provide a quality of
service at least equal to that which lawyers generally would
expect of a competent lawyer in a like situation.2

Commentary

Knowledge and Skill

1. Competence in the context of the first branch of this Rule

goes beyond formal qualification to practise law. It has to do
with the sufficiency of the lawyer’s qualifications to deal with
the matter in question. It includes knowledge, skill, and the
ability to use them effectively in the interests of the client.3

2. As members of the legal profession, lawyers hold

themselves out as being knowledgeable, skilled and capable in
the practice of law. The client is entitled to assume that the
lawyer has the ability and capacity to deal adequately with any
legal matters undertaken on the client’s behalf.4
6 Code of Professional Conduct

3. The lawyer should not undertake a matter without

honestly feeling either competent to handle it, or able to
become competent without undue delay, risk or expense to the
client. The lawyer who proceeds on any other basis is not
being honest with the client. This is an ethical consideration
and is to be distinguished from the standard of care that a
court would apply for purposes of determining negligence.5

4. Competence involves more than an understanding of legal

principles; it involves an adequate knowledge of the practice
and procedures by which those principles can be effectively
applied. To accomplish this, the lawyer should keep abreast of
developments in all areas in which the lawyer practises. The
lawyer should also develop and maintain a facility with
advances in technology in areas in which the lawyer practises
to maintain a level of competence that meets the standard
reasonably expected of lawyers in similar practice
circumstances.6

5. In deciding whether the lawyer has employed the requisite

degree of knowledge and skill in a particular matter, relevant
factors will include the complexity and specialized nature of
the matter, the lawyer’s general experience, the lawyer’s
training and experience in the field in question, the
preparation and study the lawyer is able to give the matter and
whether it is appropriate or feasible to refer the matter to, or
associate or consult with, a lawyer of established competence
in the field in question. In some circumstances expertise in a
particular field of law may be required; often the necessary
degree of proficiency will be that of the general practitioner.7

Seeking Assistance

6. The lawyer must be alert to recognize any lack of

competence for a particular task and the disservice that would
be done the client by undertaking that task. If consulted in
 Code of Professional Conduct 7

such circumstances, the lawyer should either decline to act or

obtain the client’s instructions to retain, consult or collaborate
with a lawyer who is competent in that field. The lawyer
should also recognize that competence for a particular task
may sometimes require seeking advice from or collaborating
with experts in scientific, accounting or other non-legal fields.
In such a situation the lawyer should not hesitate to seek the
client’s instructions to consult experts.8

Quality of Service

7. Numerous examples could be given of conduct that does

not meet the quality of service required by the second branch
of the Rule. The list that follows is illustrative, but not by any
means exhaustive:

(a) failure to keep the client reasonably informed;

(b) failure to answer reasonable requests from the client
for information;
(c) unexplained failure to respond to the client’s
telephone calls;
(d) failure to keep appointments with clients without
explanation or apology;
(e) informing the client that something will happen or
that some step will be taken by a certain date, then
letting the date pass without follow-up information or
explanation;
(f) failure to answer within a reasonable time a
communication that requires a reply;
(g) doing the work in hand but doing it so belatedly that
its value to the client is diminished or lost;
(h) slipshod work, such as mistakes or omissions in
statements or documents prepared on behalf of the
client;
(i) failure to maintain office staff and facilities adequate
to the lawyer’s practice;
8 Code of Professional Conduct

(j) failure to inform the client of proposals of settlement,

or to explain them properly;
(k) withholding information from the client or
misleading the client about the position of a matter in
order to cover up the fact of neglect or mistakes;
(l) failure to make a prompt and complete report when
the work is finished or, if a final report cannot be
made, failure to make an interim report where one
might reasonably be expected;
(m) self-induced disability, for example from the use of
intoxicants or drugs, which interferes with or
prejudices the lawyer’s services to the client.

Promptness

8. The requirement of conscientious, diligent and efficient

service means that the lawyer must make every effort to
provide prompt service to the client. If the lawyer can
reasonably foresee undue delay in providing advice or services,
the client should be so informed.9

Consequences of Incompetence

9. It will be observed that the Rule does not prescribe a

standard of perfection. A mistake, even though it might be
actionable for damages in negligence, would not necessarily
constitute a failure to maintain the standard set by the Rule,
but evidence of gross neglect in a particular matter or a pattern
of neglect or mistakes in different matters may be evidence of
such a failure regardless of tort liability. Where both negligence
and incompetence are established, while damages may be
awarded for the former, the latter can give rise to the
additional sanction of disciplinary action.10

10. The lawyer who is incompetent does the client a

disservice, brings discredit to the profession, and may bring
 Code of Professional Conduct 9

the administration of justice into disrepute. As well as

damaging the lawyer’s own reputation and practice,
incompetence may also injure the lawyer’s associates or
dependants.11

1 Alta. 2 S.O.P.; ABA-MC Canon 6; ABA-MR 1.1; B.C. 3(1); N.B. 2-R; Ont.
2.01(1), 2.01(2); N.S. 2-R.
2 B.C.3(3); N.B. 3-R, 3-C.1; N.S. 3-R.
3 N.S. 2.
4 N.B. 2-C.2; N.S. 2.1; Ont. 2.01(1) Commentary; Que. 3.01.01, 3.02.03.
5 Alta. 2-R.2; ABA-MC EC6-3, DR6-101A; N.B. 2-C.3; N.S. 2.3; Ont. 2.01(1)
Commentary.
6 ABA-MC EC 6-2; ABA-MR 1.1 [6]; N.B. 2-C.4; N.S. 2, 2.3.
7 N.S. 2.5, 2.6.
8 B.C. 3(4); N.B. 2-C.6, 2-C.7; N.S. 2.7, 2.8; Ont. 2.01(1) Commentary; Que.
3.01.01 and 3.01.02.
9 B.C. 3(3); N.B. 3-C.4; N.S. 3.1.
10 B.C. 3(5); N.B. 3-C.2.
11 N.B. 2-C.8; N.S. 2.9, 3.2, 3.3; Ont. 2.01(2) Commentary.
12 N.B. 2-C.9; N.S. 2.10; Ont. 2.01(1).
10 Code of Professional Conduct
 Code of Professional Conduct 11

CHAPTER III

ADVISING CLIENTS

RULE

The lawyer must be both honest and candid when advising

clients.1

Commentary

Scope of Advice

1. The lawyer’s duty to the client who seeks legal advice is to

give the client a competent opinion based on sufficient
knowledge of the relevant facts, an adequate consideration of
the applicable law and the lawyer’s own experience and
expertise. The advice must be open and undisguised, clearly
disclosing what the lawyer honestly thinks about the merits
and probable results.2

2. Whenever it becomes apparent that the client has

misunderstood or misconceived what is really involved, the
lawyer should explain as well as advise, so that the client is
informed of the true position and fairly advised about the real
issues or questions involved.3

3. The lawyer should clearly indicate the facts, circumstances

and assumptions upon which the lawyer’s opinion is based,
particularly where the circumstances do not justify an
12 Code of Professional Conduct

exhaustive investigation with resultant expense to the client.

However, unless the client instructs otherwise, the lawyer
should investigate the matter in sufficient detail to be able to
express an opinion rather than merely make comments with
many qualifications.4

4. The lawyer should be wary of bold and confident

assurances to the client, especially when the lawyer’s
employment may depend upon advising in a particular way.5

Second Opinion

5. If the client so desires, the lawyer should assist in

obtaining a second opinion.6

Compromise or Settlement

6. The lawyer should advise and encourage the client to

compromise or settle a dispute whenever possible on a
reasonable basis and should discourage the client from
commencing or continuing useless legal proceedings.7

Dishonesty or Fraud by Client

7. When advising the client the lawyer must never knowingly

assist in or encourage any dishonesty, fraud, crime or illegal
conduct, or instruct the client on how to violate the law and
avoid punishment. The lawyer should be on guard against
becoming the tool or dupe of an unscrupulous client or of
persons associated with such a client.8

Test Cases

8. A bona fide test case is not necessarily precluded by the

preceding paragraph and, so long as no injury to the person or
violence is involved, the lawyer may properly advise and
 Code of Professional Conduct 13

represent a client who, in good faith and on reasonable

grounds, desires to challenge or test a law, and this can most
effectively be done by means of a technical breach giving rise
to a test case. In all such situations the lawyer should ensure
that the client appreciates the consequences of bringing a test
case.9

Threatening Criminal or Disciplinary Proceedings

9. Apart from the substantive law on the subject, it is

improper for the lawyer to advise, threaten or bring a criminal,
quasi-criminal or disciplinary proceeding in order to secure
some civil advantage for the client, or to advise, seek or
procure the withdrawal of such a proceeding in consideration
of the payment of money, or transfer of property, to or for the
benefit of the client.10

Advice on Non-Legal Matters

10. In addition to opinions on legal questions, the lawyer may

be asked for or expected to give advice on non-legal matters
such as the business, policy or social implications involved in a
question, or the course the client should choose. In many
instances the lawyer’s experience will be such that the lawyer’s
views on non-legal matters will be of real benefit to the client.
The lawyer who advises on such matters should, where and to
the extent necessary, point out the lawyer’s lack of experience
or other qualification in the particular field and should clearly
distinguish legal advice from such other advice.11

Errors and Omissions

11. The duty to give honest and candid advice requires the
lawyer to inform the client promptly of the facts, but without
admitting liability, upon discovering that an error or omission
has occurred in a matter for which the lawyer was engaged
14 Code of Professional Conduct

and that is or may be damaging to the client and cannot readily

be rectified. When so informing the client the lawyer should
be careful not to prejudice any rights of indemnity that either
of them may have under any insurance, client’s protection or
indemnity plan, or otherwise. At the same time the lawyer
should recommend that the client obtain legal advice
elsewhere about any rights the client may have arising from
such error or omission and whether it is appropriate for the
lawyer to continue to act in the matter. The lawyer should also
give prompt notice of any potential claim to the lawyer’s
insurer and any other indemnitor so that any protection from
that source will not be prejudiced and, unless the client
objects, should assist and cooperate with the insurer or other
indemnitor to the extent necessary to enable any claim that is
made to be dealt with promptly. If the lawyer is not so
indemnified, or to the extent that the indemnity may not fully
cover the claim, the lawyer should expeditiously deal with any
claim that may be made and must not, under any
circumstances, take unfair advantage that might defeat or
impair the client’s claim. In cases where liability is clear and
the insurer or other indemnitor is prepared to pay its portion
of the claim, the lawyer is under a duty to arrange for payment
of the balance.12

Giving Independent Advice

12. Where the lawyer is asked to provide independent advice

or independent representation to another lawyer’s client in a
situation where a conflict exists, the provision of such advice
or representation is an undertaking to be taken seriously and
not lightly assumed or perfunctorily discharged. It involves a
duty to the client for whom the independent advice or
representation is provided that is the same as in any other
lawyer and client relationship and ordinarily extends to the
nature and result of the transaction.13
 Code of Professional Conduct 15

1 Alta 9-S.0.P; B.C. 1(3); N.B. 4-R; N.S. 4; Ont. 2.02(1); Que. 3.01.01; M.M.
Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Jane, 1957)
at pp. 78-79.
2 N.B. 4-C.1; Ont. 2.02(1) Commentary; N.S. 4 Guiding Principle. The lawyer
should not remain silent when it is plain that the client is rushing into an “unwise,
not to say disastrous adventure,” per Lord Danckwerts in Neushal v. Mellish &
Harkavy (1967), 111 Sol. Jo. 399 (C.A.).
3 Alta. 9-R.12; N.B. 4-C.3; N.S. 4.1; Ont. 2.01(1) Commentary.
4 N.S. 4.2, 4.3; Ont. 2.01(1) Commentary.
5 N.B. 4-C.4; N.S. 4.4; Ont. 2.01(1) Commentary.
6 Alta. 9-R.17; N.B. 4-C.5; N.S. 4.5.
7 Alta. 9-R.16; N.B. 4-C.6; N.S. 4.6; Ont. 2.02(2); Que. 3.02.10.
8 Alta. 9-R.11; N.B. 4-C.7; N.S. 4.7, 4.8; Ont. 2.02(5). Cf. ABA ECs 7-3 and 7-5:
“Where the bounds of law are uncertain...the two roles [of advocate and adviser] are
essentially different. In asserting a position on behalf of his client, an advocate for the
most part deals with past conduct and must take the facts as he finds them. By contrast,
a lawyer serving as adviser primarily assists his client in determining the course of future
conduct and relationships.... A lawyer should never encourage or aid his client to
commit criminal acts or counsel his client on how to violate the law and avoid
punishment...” [emphasis added].
9 N.S. 4.9; Ont. 2.02(5) Commentary. For example, to challenge the jurisdiction for
or the applicability of a shop-closing by-law or a licensing measure, or to determine
the rights of a class or group having some common interest.
10 B.C. 4(2); N.B. 4-C.9; N.S. 4.10; Ont. 2.02(4). See “Criminal Law May Not be
Used to Collect Civil Debts” (1968) 2:4 L. Soc’y Gaz. 36.
11 N.B. 4-C.14; N.S. 4.11-4.13; Ont. 2.01(1) Commentary.
12 Alta. 9-R.18; B.C. 4(5), 4(5.1); N.B. 4-C.16; N.S. 4.14-4.17.
13 N.B. 4-C.13; N.S. 4.18, 4.19.
16 Code of Professional Conduct
 Code of Professional Conduct 17

CHAPTER IV

CONFIDENTIAL INFORMATION

RULE

Maintaining Information in Confidence

1. The lawyer has a duty to hold in strict confidence all

information concerning the business and affairs of the client
acquired in the course of the professional relationship, and
shall not divulge any such information except as expressly or
impliedly authorized by the client, required by law or
otherwise required by this Code.1

Public Safety Exception

2. Where a lawyer believes upon reasonable grounds that

there is an imminent risk to an identifiable person or group of
death or serious bodily harm, including serious psychological
harm that would substantially interfere with health or well-
being, the lawyer shall disclose confidential information where
it is necessary to do so in order to prevent the death or harm,
but shall not disclose more information than is required.2

3. The lawyer who has reasonable grounds for believing that

a dangerous situation is likely to develop at a court or tribunal
facility shall inform the person having responsibility for
security at the facility and give particulars, being careful not to
disclose confidential information except as required by
18 Code of Professional Conduct

paragraph 2 of this Rule. Where possible the lawyer should

suggest solutions to the anticipated problem such as:

(a) the need for further security;

(b) that judgment be reserved;
(c) such other measure as may seem advisable.3

Disclosure Where Lawyer’s Conduct in Issue

4. Disclosure may also be justified in order to establish or

collect a fee, or to defend the lawyer or the lawyer’s associates
or employees against any allegation of malpractice or
misconduct, but only to the extent necessary for such
purposes.4

Commentary

Guiding Principles

1. The lawyer cannot render effective professional service to

the client unless there is full and unreserved communication
between them. At the same time the client must feel
completely secure and entitled to proceed on the basis that,
without an express request or stipulation on the client’s part,
matters disclosed to or discussed with the lawyer will be held
secret and confidential.5

2. This ethical rule must be distinguished from the

evidentiary rule of solicitor-client privilege with respect to oral
or written communications passing between the client and the
lawyer. The ethical rule is wider and applies without regard to
the nature or source of the information or to the fact that
others may share the knowledge.6

3. The importance of the even broader ethical rule regarding

confidential information is illustrated by the Supreme Court
 Code of Professional Conduct 19

of Canada’s approach to solicitor-client privilege. The Court

has held that solicitor-client privilege must remain as close to
absolute as possible if it is to retain its relevance. Solicitor-
client privilege is a rule of evidence, an important civil and
legal right and a principle of fundamental justice in Canadian
law. The public has a compelling interest in maintaining the
integrity of the solicitor-client relationship. Confidential
communications to a lawyer represent an important exercise of
the right to privacy, and they are central to the administration
of justice in an adversarial system.

4. As a general rule, the lawyer should not disclose having

been consulted or retained by a person except to the extent
that the nature of the matter requires such disclosure.7

5 The lawyer owes a duty of secrecy to every client without

exception, regardless of whether it is a continuing or casual
client. The duty survives the professional relationship and
continues indefinitely after the lawyer has ceased to act for the
client, whether or not differences have arisen between them.8

6. The lawyer should take care to avoid disclosure to one

client of confidential information concerning or received from
another client and should decline employment that might
require such disclosure.9

7. The lawyer should avoid indiscreet conversations, even

with the lawyer’s spouse or family, about a client’s business or
affairs and should shun gossip about such things even though
the client is not named or otherwise identified. Likewise the
lawyer should not repeat any gossip or information about the
client’s business or affairs that may be overheard by or
recounted to the lawyer. Apart altogether from ethical
considerations or questions of good taste, indiscreet shop-talk
between lawyers, if overheard by third parties able to identify
the matter being discussed, could result in prejudice to the
20 Code of Professional Conduct

client. Moreover, the respect of the listener for the lawyers

concerned and the legal profession generally will probably be
lessened.10

8. Although the Rule may not apply to facts that are public
knowledge, the lawyer should guard against participating in or
commenting upon speculation concerning the client’s affairs
or business.11

Disclosure Authorized by Client

9. Confidential information may be divulged with the

express authority of the client and, in some situations, that
authority may be implied. For example, some disclosure may
be necessary in a pleading or other document delivered in
litigation being conducted for the client. Again, the lawyer
may (unless the client directs otherwise) disclose the client’s
affairs to partners and associates in the firm and, to the extent
necessary, to non-legal staff such as secretaries and filing
clerks. This authority to disclose, whether express or implied,
places on the lawyer a duty to impress upon partners,
associates, students and employees the importance of non-
disclosure (both during their employment and afterwards) and
requires the lawyer to take reasonable care to prevent their
disclosing or using information that the lawyer is bound to
keep in confidence.12

Confidential Information Not to be Used

10. The fiduciary relationship between lawyer and client

forbids the lawyer to use any confidential information covered
by the ethical rule for the benefit of the lawyer or a third
person, or to the disadvantage of the client. The lawyer who
engages in literary work, such as an autobiography, should
avoid disclosure of confidential information.13
 Code of Professional Conduct 21

Disclosure Required by Law

11. When disclosure is required by law or by order of a court

of competent jurisdiction, the lawyer should be careful not to
divulge more than is required. Legislation in certain
jurisdictions imposes a duty on persons to report sexual or
physical abuse in specified circumstances. Careful
consideration of the wording of such legislation is necessary to
determine whether, in such circumstances, communications
that are subject to solicitor-client privilege must be disclosed.14

Whistleblowing

12. A lawyer employed or retained to act for an organization,

including a corporation, confronts a difficult problem about
confidentiality when the lawyer becomes aware that the
organization may commit a dishonest, fraudulent, criminal, or
illegal act. This problem is sometimes described as the
problem of whether the lawyer should “blow the whistle” on
the employer or client. Although this Code makes it clear that
the lawyer shall not knowingly assist or encourage any
dishonesty, fraud, crime, or illegal conduct (Chapter III,
commentary 7), it does not follow that the lawyer should
disclose to the appropriate authorities an employer’s or client’s
proposed misconduct. Rather, the general rule, as set out
above, is that the lawyer shall hold the client’s information in
strict confidence, and this general rule is subject to only a few
exceptions. If the exceptions do not apply there are, however,
several steps that a lawyer should take when confronted with
this problem of proposed misconduct by an organization. The
lawyer should recognize that the lawyer’s duties are owed to
the organization and not to its officers, employees, or agents.
The lawyer should therefore ask that the matter be
reconsidered, and should, if necessary, bring the proposed
misconduct to the attention of a higher (and ultimately the
highest) authority in the organization despite any direction
22 Code of Professional Conduct

from anyone in the organization to the contrary. If these

measures fail, then it may be appropriate for the lawyer to
resign in accordance with the rules for withdrawal from
representation (Chapter XII).15

1 Alta. 7-S.0.P, 7-R.1; ABA-MC Canon 4, DRs 4-101(A), (B), (C); ABA-MR 1.6(a);
B.C. 5(1); N.B. 5-R; N.S. 5; Ont. 2.03(1); Que. 3.06.01, 3.06.02.
2 Alta. 7-R.8(c); ABA-MC DR4-101(c)(3); ABA-MR 1.6(b); B.C. 5(12); N.B. 5-
C.8(b); N.S. 5.12; Ont. 2.03(3); Que. 3.06.01.
3 N.B. 5-C.11; Ont. 2.03(1) Commentary.
4 Alta. 7-R.8 (e.1); ABA-MC DR4-101(c)(4); N.S. 5.11; Ont. 2.03(5).
5 N.S. 5; Ont. 2.03(1) Commentary. “[I]t is absolutely necessary that a man, in order
to prosecute his rights or defend himself...should have recourse to lawyers
and...equally necessary...that he should be able to place unrestricted and unbounded
confidence in the professional agent, and that the communications he so makes to
him should be kept secret, unless with his consent (for it is his privilege and not the
privilege of the confidential agent)...” per Jessell M.R. in Anderson v. Bank of British
Columbia (1876), L.R. 2 Ch.D. 644 at 649 (C.A.). In Maranda v. Richer, [2003] 3
S.C.R. 193 the Supreme Court of Canada held that a lawyer’s account for fees and
disbursements is protected by solicitor-client privilege.
6 N.B. 5-C.2; N.S. 5.1; Ont. 2.03(1) Commentary. The Supreme Court of Canada
has affirmed that solicitor-client privilege must remain as close to absolute as
possible if it is to retain relevance: Lavallee, Rackel & Heintz v. Attorney General of
Canada, [2002] 3 S.C.R. 209 at para. 36. In the same case (at para. 24) the Court
observed that lawyers are the gatekeepers who protect the privileged information
provided by their clients.
7 N.B. 5-C.3; N.S. 5.2; Ont. 2.03(1) Commentary.
8 N.S. 5.3; Ont. 2.03(1) Commentary. “...a fundamental rule, namely the duty of a
solicitor to refrain from disclosing confidential information unless his client waives
the privilege.... Because the solicitor owes to his former client a duty to claim the
privilege when applicable, it is improper for him not to claim it without showing
that it has been properly waived,” per Spence J. in Bell et al. v. Smith et al., [1968]
S.C.R. 644 at 671. To waive the privilege, the client must know of his rights and
show a clear intention to forgo them: Kulchar v. March & Benkert (1950), 1 W.W.R.
272 (Sask. K.B.).
9 N.B. 5-C.5; N.S. 5.6; Ont. 2.03(1) Commentary.
10 N.B. 5-C.6; N.S. 5.7, 5.8; Ont. 2.03(1) Commentary.
11 N.S. 5.9; Ont. 2.03(1) Commentary.
12 Alta. 7-R.8(e); ABA-MC EC4-2, DR4-101(C)(1), (D); ABA-MR 1.6[5]; B.C.
5(11); N.B. 5-C.9(a); N.S. 5.10; Ont. 2.03(1) Commentary. “When a solicitor files
an affidavit on behalf of his client...it should be assumed, until the contrary is
 Code of Professional Conduct 23

proved, or at least until the solicitor’s authority to do so is disputed by the client, that
the solicitor has the authority to make the disclosure,” per Lebel J. in Kennedy v.
Diversified (1949), 1 D.L.R. 59 at 61 (Ont. H.C.).
13 Alta. 7-R.6(a); ABA-MC EC4-5; B.C. 5(5) to 5(8); N.S. 5.4, 5.5; Ont. 2.03(b) and
Commentary. Misuse by a lawyer for his own benefit of his client’s confidential
information may render the lawyer liable to account: McMaster v. Byrne (1952), 3
D.L.R. 337 (P.C.); Bailey v. Ornheim (1962), 40 W.W.R. (N.S.) 129 (B.C.S.C.).
14 Alta. 7-R.8(b); ABA-MC DR4-101(C)(2); ABA-MR 1.6 [13], [14]; B.C. 5(13),
5(14); Ont. 2.03(2).
15 Ont. 2.03(3) Commentary.
24 Code of Professional Conduct
 Code of Professional Conduct 25

CHAPTER V

IMPARTIALITY AND CONFLICT OF

INTEREST BETWEEN CLIENTS

RULE

The lawyer shall not advise or represent both sides of a

dispute and, except after adequate disclosure to and with the
consent of the clients or prospective clients concerned, shall
not act or continue to act in a matter when there is or is likely
to be a conflicting interest.1

Commentary

Guiding Principles

1. A conflicting interest is one that would be likely to affect

adversely the lawyer’s judgment on behalf of, advice to, or
loyalty to a client or prospective client.2

2. The reason for the Rule is self-evident. The client or the

client’s affairs may be seriously prejudiced unless the lawyer’s
judgment and freedom of action on the client’s behalf are as
free as possible from compromising influences.3

3. Conflicting interests include, but are not limited to, the

duties and loyalties of the lawyer or a partner or professional
associate of the lawyer to another client, whether involved in
the particular matter or not, including the obligation to
26 Code of Professional Conduct

communicate information.4

4. A lawyer may not represent one client whose interests are

directly adverse to the immediate interests of another current
client, even if the two matters are unrelated, unless both
clients consent after receiving full disclosure and, preferably,
independent legal advice.

Disclosure of Conflicting Interest

5. The Rule requires adequate disclosure to enable the client

to make an informed decision about whether to have the
lawyer act despite the existence or possibility of a conflicting
interest. As important as it is to the client that the lawyer’s
judgment and freedom of action on the client’s behalf should
not be subject to other interests, duties or obligations, in
practice this factor may not always be decisive. Instead it may
be only one of several factors that the client will weigh when
deciding whether to give the consent referred to in the Rule.
Other factors might include, for example, the availability of
another lawyer of comparable expertise and experience, the
extra cost, delay and inconvenience involved in engaging
another lawyer and the latter’s unfamiliarity with the client
and the client’s affairs. In the result, the client’s interests may
sometimes be better served by not engaging another lawyer.
An example of this sort of situation is when the client and
another party to a commercial transaction are continuing
clients of the same law firm but are regularly represented by
different lawyers in that firm.5

6. Before the lawyer accepts employment from more than

one client in the same matter, the lawyer must advise the
clients that the lawyer has been asked to act for both or all of
them, that no information received in connection with the
matter from one can be treated as confidential so far as any of
the others is concerned and that, if a dispute develops that
 Code of Professional Conduct 27

cannot be resolved, the lawyer cannot continue to act for both

or all of them with respect to the matter and may have to
withdraw completely. Where a lawyer has a continuing
relationship with a client for whom the lawyer acts regularly,
before the lawyer accepts joint employment for that client and
another client in a matter or transaction, the lawyer must
advise the other client of the continuing relationship and
recommend that the other client obtain independent legal
advice about the joint retainer. If, following such disclosure,
all parties are content that the lawyer act for them, the lawyer
should obtain their consent, preferably in writing, or record
their consent in a separate letter to each. The lawyer should,
however, guard against acting for more than one client where,
despite the fact that all parties concerned consent, it is
reasonably obvious that a contentious issue may arise between
them or that their interests, rights or obligations will diverge
as the matter progresses.6

7. Although commentary 6 does not require that, before

accepting a joint retainer, a lawyer advise each client to obtain
independent legal advice about the joint retainer, in some
cases, especially those in which one of the clients is less
sophisticated or more vulnerable than the other, the lawyer
should recommend doing so to ensure that the less
sophisticated or more vulnerable client’s consent to the joint
retainer is informed, genuine, and uncoerced.7

8. If a contentious issue arises between clients on a joint

retainer, the lawyer, although not necessarily precluded from
advising them on other non-contentious matters, would be in
breach of the Rule if the lawyer attempted to advise them on
the contentious issue. In such circumstances the lawyer
should ordinarily refer the clients to other lawyers. However,
if the issue is one that involves little or no legal advice, for
example, a business rather than a legal question in a proposed
business transaction, and the clients are sophisticated, they
28 Code of Professional Conduct

may be permitted to settle the issue by direct negotiation in

which the lawyer does not participate. Alternatively, the
lawyer may refer one client to another lawyer and continue to
advise the other if it was agreed at the outset that this course
would be followed if a conflicting interest arose.8

Lawyer as Arbitrator

9. The Rule will not prevent a lawyer from arbitrating or

settling, or attempting to arbitrate or settle, a dispute between
two or more clients or former clients who are sui juris and who
wish to submit to the lawyer.9

Prohibition Against Acting for Borrower and Lender

10. Subject to commentary 11, a lawyer or two or more

lawyers practising in partnership or association should not act
for or otherwise represent both lender and borrower in a
mortgage or loan transaction.10

11. A lawyer may act for or otherwise represent both lender

and borrower in a mortgage or loan transaction if:

(a) the lawyer practises in a remote location where there

is no other lawyer whom either party could
conveniently retain for the matter;
(b) the lender is selling real property to the borrower and
the mortgage represents part of the purchase price;
(c) the lender is a bank, trust company, insurance
company, credit union or finance company that lends
money in the ordinary course of its business;
(d) the consideration for the mortgage or loan does not
exceed $50,000; or
(e) the lender and borrower are not at “arm’s length” as
defined in the Income Tax Act (Canada).11
 Code of Professional Conduct 29

Acting Against Former Client

12. A lawyer who has acted for a client in a matter should not
thereafter, in the same or any related matter, act against the
client (or against a person who was involved in or associated
with the client in that matter) or take a position where the
lawyer might be tempted or appear to be tempted to breach
the Rule relating to confidential information. It is not,
however, improper for the lawyer to act against a former client
in a fresh and independent matter wholly unrelated to any
work the lawyer has previously done for that person.12

13. For the sake of clarity the foregoing paragraphs are

expressed in terms of the individual lawyer and client.
However, the term “client” includes a client of the law firm of
which the lawyer is a partner or associate, whether or not the
lawyer handles the client’s work. It also includes the client of
a lawyer who is associated with the lawyer in such a manner
that they are perceived as practising in partnership or
association, even though in fact no such partnership or
association exists.13

Acting for More Than One Client

14. In practice, there are many situations where persons have a

conflicting interest even though no actual dispute exists
between them. A common example in a conveyancing
practice is where the lawyer is asked to represent both vendor
and purchaser. In cases where the lawyer is asked to act for
more than one party in such a transaction, the lawyer should
recommend that each party be separately represented. In all
such transactions the lawyer must observe the rules prescribed
by the governing body.

15. There are also many situations where more than one
person may wish to retain the lawyer to handle a transaction
30 Code of Professional Conduct

and, although their interests appear to coincide, a conflicting

interest potentially exists. An example would be persons
forming a partnership or corporation. Those cases will be
governed by commentaries 5, 6 and 7 of this Chapter.

16. A lawyer who is employed or retained by an organization

represents that organization through its duly authorized
constituents. In dealing with the organization’s directors,
officers, employees, members, shareholders or other
constituents, the lawyer must make clear that it is the
organization that is the client whenever it becomes apparent
that the organization’s interests are adverse to those of a
constituent with whom the lawyer is dealing. The lawyer
representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of this Chapter.

Requests for Proposals and Other Enquiries

17. Prospective clients often interview or seek proposals from

several firms about potential retainers. During the course of
such a process, a prospective client may provide confidential
information about the potential retainer. As a result, there is a
risk that it will be suggested that a lawyer who unsuccessfully
participates in such a process should be disqualified from
acting for another party to the matter. Discussing a potential
retainer with a prospective client or participating in a request
for proposals process does not itself preclude a lawyer from
acting in the matter for another party. Where the prospective
client wishes to disclose confidential information as part of
such a process, the lawyer and the prospective client should
expressly agree whether the disclosure will prevent the lawyer
from acting for another party in the matter if the lawyer is not
retained by the prospective client. If the prospective client and
the lawyer are unable to agree, the lawyer should insist that
the prospective client not disclose confidential information
 Code of Professional Conduct 31

unless and until the lawyer is retained.

Confidential Government Information

18. A lawyer who has information known to be confidential

government information about a person, acquired when the
lawyer was a public officer or employee, shall not represent a
client (other than the agency of which the lawyer was a public
officer or employee) whose interests are adverse to that person
in a matter in which the information could be used to that
person’s material disadvantage.143

Burden of Proof

19. Generally speaking, in disciplinary proceedings arising

from a breach of this Rule the lawyer has the burden of
showing good faith and that adequate disclosure was made in
the matter and the client’s consent was obtained.15

Conflicts Arising as a Result of Transfer Between Law

Firms

Definitions

20. In this commentary:

“client” includes anyone to whom a member owes a duty of

confidentiality, whether or not a solicitor-client relationship
exists between them;

“confidential information” means information obtained from a

client which is not generally known to the public;

“law firm” includes one or more members practising,

(a) in a sole proprietorship,

(b) in a partnership,
32 Code of Professional Conduct

(c) in association for the purpose of sharing certain

common expenses but otherwise as independent
practitioners,
(d) as a professional law corporation,
(e) in a government, a Crown corporation or other public
body, and
(f) in some other corporation or body.

“matter” means a case or client file, but does not include

general “know-how” and, in the case of a government lawyer,
does not include policy unrelated to a particular case;

“member” means a member of a law society, and includes an

articled law student registered in a governing body’s pre-call
training program.

Application of Commentary

21. This commentary applies where a member transfers from

one law firm (“former law firm”) to another (“new law
firm”),16 and either the transferring member or the new law
firm is aware at the time of the transfer or later discovers that:

(a) the new law firm represents a client in a matter which

is the same as or related to a matter in respect of
which the former law firm represents its client
(“former client”);
(b) the interests of those clients in that matter conflict;
and
(c) the transferring member actually possesses relevant
information respecting that matter.17

22. Paragraphs 23 to 26 do not apply to a member employed

by the federal, a provincial or a territorial Attorney General or
Department of Justice who, after transferring from one
department, ministry or agency to another, continues to be
 Code of Professional Conduct 33

employed by that Attorney General or Department of

Justice.18

Firm Disqualification

23. Where the transferring member actually possesses relevant

information respecting the former client that is confidential
and disclosure of it to a member of the new law firm might
prejudice the former client, the new law firm shall cease its
representation of its client in that matter unless:

(a) the former client consents to the new law firm’s

continued representation of its client; or
(b) the new law firm establishes that,

(i) it is in the interests of justice that its representation

of its client in the matter continue, having regard
to all relevant circumstances, including,

(A) the adequacy of the measure taken under (ii),

(B) the extent of prejudice to any party,
(C) the good faith of the parties,
(D) the availability of alternative suitable counsel,
and
(E) issues affecting the national or public interest;
and19

(ii) it has taken reasonable measures to ensure that no

disclosure to any member of the new law firm of
the former client’s confidential information will
occur.20

Transferring Lawyer Disqualification

24. Where the transferring member actually possesses relevant

information respecting the former client and, although the
34 Code of Professional Conduct

information is not confidential, disclosure of it to a member of

the new law firm might prejudice the former client,21

(a) the member should execute an affidavit or solemn

declaration to that effect, and
(b) the new law firm should,

(i) notify its client and the former client, or if the

former client is represented in that matter by a
member, notify that member, of the relevant
circumstances and its intended action under this
commentary, and
(ii) deliver to the persons referred to in (i) a copy of
the affidavit or solemn declaration executed under
(a).22

25. A transferring member described in the opening clause of

paragraph 23 or 24 shall not, unless the former client
consents,23

(a) participate in any manner in the new law firm’s

representation of its client in that matter, or
(b) disclose any confidential information respecting the
former client.24

26. No member of the new law firm shall, unless the former
client consents, discuss with a transferring member described
in the opening clause of paragraph 23 or 24 the new law firm’s
representation of its client or the former law firm’s
representation of the former client in that matter.25

Determination of Compliance

27. Anyone who has an interest in, or who represents a party

in, a matter referred to in this commentary may apply to a
court of competent jurisdiction for a determination of any
 Code of Professional Conduct 35

aspect of this commentary.26

Due Diligence

28. A member shall exercise due diligence in ensuring that

each member and employee of the member’s law firm, and
each other person whose services the member has engaged:27

(a) complies with this commentary; and

(b) does not disclose

(i) confidences of clients of the firm, and

(ii) confidences of clients of another law firm in which
the person has worked.28

Application

29. The purpose of this commentary is to deal with actual

knowledge. Imputed knowledge does not give rise to
disqualification.29

A. Lawyers and support staff

This commentary is intended to regulate lawyers and articled

law students who transfer between law firms. It also imposes
a general duty on members to exercise due diligence in the
supervision of non-lawyer staff, to ensure that they comply
with the commentary and with the duty not to disclose:

(a) confidences of clients of the member’s firm; or

(b) confidences of clients of other law firms in which they
have worked.
36 Code of Professional Conduct

B. Government employees and in-house counsel

The definition of “law firm” includes one or more lawyers

practising in a government, a Crown corporation, any other
public body or a corporation or other entity. Thus, this
commentary applies to members transferring to or from
government service and into or out of an in-house counsel
position, but does not extend to a purely internal transfer after
which the employer remains the same.

C. Law firms with multiple offices

This commentary treats as one “law firm” such entities as the

various legal services units of a government, a corporation
with separate regional legal departments, an inter-provincial
law firm and a legal aid program with many community law
offices. The more autonomous that each unit, department, or
office is, the easier it should be, in the event of a conflict, for
the new firm to obtain the former client’s consent, or to
establish that it is in the public interest, that it continue to
represent its client in the matter.

D. Practising in association

The definition of “law firm” includes one or more lawyers

practising in association for the purpose of sharing certain
common expenses but who are otherwise independent
practitioners. This recognizes the risk that lawyers practising
in association, like partners in a law firm, will share client
confidences while discussing their files with one another.30

Matters to Consider When Interviewing a Potential Transferee

30. When a law firm considers hiring a lawyer or articled law

student (“transferring member”) from another law firm, the
transferring member and the new law firm need to determine,
 Code of Professional Conduct 37

before transfer, whether any conflicts of interest will be created.

Conflicts can arise with respect to clients of the firm that the
transferring member is leaving, and with respect to clients of a
firm in which the transferring member worked at some earlier
time.

After completing the interview process and before hiring the

transferring member, the transferring member and the new
law firm need first to identify all cases in which:

(a) the new law firm represents a client in a matter which

is the same as or related to a matter in respect of
which the former law firm represents its client;
(b) the interests of these clients in that matter conflict;
and
(c) the transferring member actually possesses relevant
information respecting that matter.

When these three elements exist, the transferring member is

personally disqualified from representing the new client,
unless the former client consents.

Second, they must determine, with respect to each such

matter, whether the information that the transferring member
possesses is confidential, and whether disclosure of it to a
member of the new law firm might prejudice the former
client.

If this element exists, then the transferring member is

disqualified unless the former client consents, and the new
law firm is disqualified unless the former client consents or
the new law firm establishes that its continued representation
is in the public interest.

In this commentary, “confidential” information refers to

38 Code of Professional Conduct

information obtained from a client that is not generally known

to the public. The obligation to keep such information
confidential should be distinguished from the general ethical
duty to hold in strict confidence all information concerning
the business and affairs of the client acquired in the course of
the professional relationship, which duty applies without
regard to the nature or source of the information or to the fact
that others may share the knowledge.

In determining whether the transferring member possesses

confidential information, both the transferring member and
the new law firm need to ensure that they do not, during the
interview process itself, disclose client confidences.31

Matters to Consider Before Hiring a Potential Transferee

31. After completing the interview process and before hiring

the transferring member, the new law firm should determine
whether a conflict exists.

A. Where a conflict exists32

If the new law firm concludes that the transferring member

does actually possess relevant information respecting a former
client which is confidential and its disclosure to a member of
the new law firm might prejudice the former client, then the
new law firm will be prohibited, if the transferring member is
hired, from continuing to represent its client in the matter
unless,

(a) the new law firm obtains the former client’s consent
to its continued representation of its client in that
matter; or
(b) the new law firm complies with paragraph 23(b) and,
in determining whether continued representation is in
the interests of justice, both clients’ interests are the
paramount consideration.33
 Code of Professional Conduct 39

If the new law firm seeks the former client’s consent to the
new law firm’s continuing to act it will, in all likelihood, be
required to satisfy the former client that it has taken
reasonable measures to ensure that no disclosure to any
member of the new law firm of the former client’s
confidential information will occur. The former client’s
consent must be obtained before the transferring member is
hired.

Alternatively, if the new law firm applies under paragraph 27

for a determination that it may continue to act, it bears the
onus of establishing the matters referred to in paragraph 23(b).
Again, this process must be completed before the transferring
person is hired.

The circumstances enumerated in paragraph 23(b)(i) are

drafted in broad terms to ensure that all relevant facts will be
taken into account. While clauses (B) and (D) are self-
explanatory, clause (E) addresses governmental concerns
respecting issues of national security, cabinet confidence and
obligations incumbent on Attorneys General and their agents
in the administration of justice.

B. Where no conflict exists

If the new law firm concludes that the transferring member

actually possesses relevant information respecting a former
client, but that information is not confidential information,
which, if disclosed to a member of the new law firm, might
prejudice the former client, then,

(a) the transferring member should execute an affidavit

or solemn declaration to that effect; and
(b) the new law firm must notify its client and the former
client/former law firm “of the relevant circumstances
and its intended action under this commentary”, and
40 Code of Professional Conduct

deliver to them a copy of any affidavit or solemn

declaration executed by the transferring member.

Although this commentary does not require that the notice be

in writing, it would be prudent for the new law firm to
confirm these matters in writing.

The new law firm might, for example, seek the former client’s
consent that the transferring member act for the new law
firm’s client in the matter because in the absence of such
consent, the transferring member may not act.

If the former client does not consent that the transferring

member act, it would be prudent for the new law firm to take
reasonable measures to ensure that no disclosure to any
member of the new law firm of the former client’s
confidential information will occur. If those measures are
taken, it will strengthen the new law firm’s position if it is
later determined that the transferring member did in fact
possess confidential information that might prejudice the
former client.

A transferring member who possesses no such confidential

information, by executing an affidavit or solemn declaration to
that effect and delivering it to the former client, puts the
former client on notice. A former client who disputes the
allegation that there is no such confidential information may
apply under paragraph 27 for a determination of that issue.34

Reasonable Measures to Ensure Non-Disclosure of

Confidential Information

32. As noted above, there are two circumstances in which the

new law firm should consider the implementation of
reasonable measures to ensure that no disclosure to any
member of the new law firm of the former client’s
 Code of Professional Conduct 41

confidential information will occur:

(a) where the transferring member actually possesses

confidential information respecting a former client,
disclosure of which to a member of the new law firm
might prejudice the former client; and
(b) where the new law firm is not sure whether the
transferring member actually possesses such
confidential information, but wants to strengthen its
position if it is later determined that the transferring
member did in fact possess such confidential
information.

It is not possible to offer a set of “reasonable measures” that

will be appropriate or adequate in every case. Rather, the new
law firm which seeks to implement reasonable measure must
exercise professional judgment in determining what steps
must be taken “to ensure that no disclosure to any member of
the new law firm of the former client’s confidential
information will occur.”

In the case of law firms with multiple offices, the degree of

autonomy possessed by each office will be an important factor
in determining what constitutes “reasonable measures”. For
example, the various legal services units of a government, a
corporation with separate regional legal departments, an inter-
provincial law firm or a legal aid program may be able to argue
that, because of its institutional structure, reporting
relationships, function, nature of work and geography,
relatively fewer “measures” are necessary to ensure the non-
disclosure of client confidences.

The guidelines at the end of this commentary, adapted from

the Canadian Bar Association’s Task Force report, entitled
Conflict of Interest Disqualification: Martin v. Gray and Screening
Methods (February 1993), are intended as a checklist of relevant
42 Code of Professional Conduct

factors to be considered. Adoption of only some of the

guidelines may be adequate in some cases, while adoption of
them all may not be sufficient in others.

Where a transferring lawyer joining a government legal

services unit or the legal department of a corporation actually
possesses confidential information respecting a former client,
which, if disclosed to a member of the new “law firm”, might
prejudice the former client, the interests of the new client (i.e.
Her Majesty or the corporation) must continue to be
represented. Normally, this will be effected either by
instituting satisfactory screening measures or, when necessary,
by referring conduct of the matter to outside counsel. As each
situation will be unique, flexibility will be required in the
application of subparagraph 23(b), particularly clause (E).35

Guidelines36

1. The screened member should have no involvement in the

new law firm’s representation of its client.

2. The screened member should not discuss the current

matter or any information relating to the representation of the
former client (the two may be identical) with anyone else in
the new law firm.

3. No member of the new law firm should discuss the

current matter or the prior representation with the screened
member.

4. The current matter should be discussed only within the

limited group that is working on the matter.

5. The files of the current client, including computer files,

should be physically segregated from the new law firm’s
regular filing system, specifically identified, and accessible only
 Code of Professional Conduct 43

to those lawyers and support staff in the new law firm who are
working on the matter or who require access for other
specifically identified and approved reasons.

6. No member of the new law firm should show the

screened member any document relating to the current
matter.

7. The measures to be taken by the new law firm to screen

the transferring member should be stated in a written policy
explained to all the firm’s lawyers and support staff, supported
by an admonition that violation of the policy will result in
sanctions, up to and including dismissal.

8. Affidavits should be provided by the appropriate firm

members, setting out that they have adhered to and will
continue to adhere to all elements of the screen.

9. The former client, or if the former client is represented in

that matter by a member, that member, should be advised,

(a) that the screened member is now with the new law
firm, which represents the current client, and
(b) of the measures adopted by the new law firm to
ensure that there will be no disclosure of confidential
information.

10. The screened member’s office or work station and that of

the member’s secretary should be located away from the
offices and work stations of lawyers and support staff working
on the matter.

11. The screened member should use associates and support

staff other than those working on the current matter.
44 Code of Professional Conduct

1 Alta. 6-S.O.P., 6-R.1; ABA-MC EC5-14, 5-15, DRs 5-101(A), 5-105; ABA-MR 1.7,
1.8, 1.9; B.C. 6(1) to 6(3); N.B. 6-R, 6-C.1; N.S. 6; Ont. 2.04(2); Que. 3.06.06.
2 Ont. 2.04(1); N.S. 6-1; Que. 3.06.07; M.M. Orkin, Legal Ethics: A Study of
Professional Conduct (Toronto: Cartwright & Jane, 1957) at pp. 98-101.
3 Ont. 2.04(3) Commentary.
4 Two fundamental duties underlie any analysis of conflict of interest problems: the
duty of confidentiality and the duty of loyalty. The Supreme Court of Canada
emphasized the former in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 and the
latter in R. v. Neil, [2002] 3 S.C.R. 631. See also Bolkiah v. KPMG, [1999] 2 A.C.
222 (H.L.).
5 Alta. 6-R.2; ABA-MC EC 5-16, 5-19; ABA-MR 1.7 (b)(4); Ont. 2.04(3)
Commentary.
6 B.C. 6(4); N.B. 6-C.1(C), 6-C.2; N.S. 6-2, 6-3; Ont. 2.04(6), 2.04(7)
Commentary.
7 Ont. 2.04(6) Commentary.
8 B.C. 6(5); N.S. 6-4; Ont. 2.04(9).
9 N.B. 6-C.5; N.S. 6-6; Ont. 2.04(9).
10 Ont. 2.04(11).
11 Ont. 2.04(12).
12 Alta. 6-R.3; N.B. 6-C.4; N.S. 6-8, 6-9; Ont. 2.04(4).
13 Ont. 2.04(5) Commentary.
14 B.C. 5(9), 5(10).
15 N.B. 6-C.8; N.S. C-6.8.
16 N.B. 6-C.7.
17 Alta. 6-R.4; ABA-MR 1.9(b), (c); B.C. 6(7.2); N.S. 6a-2; Ont. 2.05(2).
18 B.C. 6(7.3); N.S. 6a-3; Ont. 2.05(3).
19 Ont. 2.05(4).
20 B.C. 6(7.4); N.S. 6a-4.
21 N.S. 6a-5; Ont. 2.05(6).
22 B.C. 6(7.5).
23 N.S. 6a-6; Ont. 2.05(7).
24 B.C. 6(7.6).
25 B.C. 6(7.7); N.S. 6a-7; Ont. 2.05(8).
26 B.C. 6(7.8); Ont. 2.05(9).
27 N.S. 6a-8.
28 B.C. 6(7.9); Ont. 2.05 (10); Que. 3.06.04.
29 Ont. 2.05(3) Commentary.
30 N.S. C-6A.1.
31 B.C. Appendix 5(1); N.S. C-6A.2; Ont. 2.05(10) Commentary.
32 N.S. C-6A.3; Ont. 2.05(10) Commentary; Alta. 6-R.4(d).
33 B.C. Appendix 5(2)(a); N.S. C-6A.3(a).
34 Alta. 6-R.4(c); B.C. Appendix 5(2)(b); N.S. C-6A.3(b).
35 B.C. Appendix 5(3); N.S. C-6A.4 ; Ont. 2.05(10) Commentary.
36 B.C. Appendix 5 Guidelines; N.S. 6 Guidelines; Ont. 2.05(10) Commentary.
 Code of Professional Conduct 45

CHAPTER VI

CONFLICT OF INTEREST BETWEEN

LAWYER AND CLIENT

RULE

1. The lawyer should not enter into a business transaction

with the client or knowingly give to or acquire from the client
an ownership, security or other pecuniary interest unless:1

(a) the transaction is a fair and reasonable one and its

terms are fully disclosed to the client in writing in a
manner that is reasonably understood by the client;2
(b) the client is given a reasonable opportunity to seek
independent legal advice about the transaction, the
onus being on the lawyer to prove that the client’s
interests were protected by such independent advice;
and
(c) the client consents in writing to the transaction.3

2. The lawyer shall not enter into or continue a business

transaction with the client if:

(a) the client expects or might reasonably be assumed to

expect that the lawyer is protecting the client’s
interests;4
(b) there is a significant risk that the interests of the
lawyer and the client may differ.5
46 Code of Professional Conduct

3. The lawyer shall not act for the client where the lawyer’s
duty to the client and the personal interests of the lawyer or an
associate are in conflict.6

4. The lawyer shall not prepare an instrument giving the

lawyer or an associate a substantial gift from the client,
including a testamentary gift.7

5. The lawyer must comply with the terms of all professional

liability insurance policies.8

Commentary

Guiding Principles

1. The principles enunciated in the Rule relating to

impartiality and conflict of interest between clients apply
mutatis mutandis to this Rule.

2. A conflict of interest between lawyer and client exists in all

cases where the lawyer gives property to or acquires it from
the client by way of purchase, gift, testamentary disposition or
otherwise. Such transactions are to be avoided. When they are
contemplated, the prudent course is to insist that the client
either be independently represented or have independent legal
advice.9

3. This Rule applies also to situations involving associates of

the lawyer. Associates of the lawyer within the meaning of the
Rule include the lawyer’s spouse, children, any relative of the
lawyer (or of the lawyer’s spouse) living under the same roof,
any partner or associate of the lawyer in the practice of law, a
trust or estate in which the lawyer has a substantial beneficial
interest or for which the lawyer acts as a trustee or in a similar
capacity, and a corporation of which the lawyer is a director or
in which the lawyer or an associate owns or controls, directly
 Code of Professional Conduct 47

or indirectly, a significant number of shares.10

Debtor-Creditor Relationship to be Avoided

4. The lawyer should avoid entering into a debtor-creditor

relationship with the client. The lawyer should not borrow
money from a client who is not in the business of lending
money. It is undesirable that the lawyer lend money to the
client except by way of advancing necessary expenses in a legal
matter that the lawyer is handling for the client.11

Joint Ventures

5. The lawyer who has a personal interest in a joint business

venture with others may represent or advise the business
venture in legal matters between it and third parties, but
should not represent or advise either the joint business
venture or the joint venturers in respect of legal matters as
between them.

When Person to be Considered a Client

6. The question of whether a person is to be considered a

client of the lawyer when such person is lending money to the
lawyer, or buying, selling, making a loan to or investment in,
or assuming an obligation in respect of a business, security or
property in which the lawyer or an associate of the lawyer has
an interest, or in respect of any other transaction, is to be
determined having regard to all the circumstances. A person
who is not otherwise a client may be deemed to be a client for
purposes of this Rule if such person might reasonably feel
entitled to look to the lawyer for guidance and advice in
respect of the transaction. In those circumstances the lawyer
must consider such person to be a client and will be bound by
the same fiduciary obligations that attach to a lawyer in
dealings with a client. The onus shall be on the lawyer to
48 Code of Professional Conduct

establish that such a person was not in fact looking to the

lawyer for guidance and advice.12

1 ABA-MC Canon 5, DR 5-101(A), (B); ABA-MR 1.8(a); Ont. 2.06(2).

2 N.S. 7(c)(ii).
3 Alta. 6-R.9; N.B. 11-R(a); N.S. 7(c)(iii).
4 N.B. 11-R(b).
5 N.S. 7(b).
6 N.S. 7(a).
7 ABA-MR 1.8(c); N.S. 7(f).
8 Alta. 6-R.8; B.C. 7.
9 N.S. R-7(e); Que. 3.05.13.
10 As to corporations, cf. ABA EC 5-18: “A lawyer employed or retained by a
corporation or similar entity owes his allegiance to the entity and not to a
stockholder, director, officer, employee, representative, or other person connected
with the entity. In advising the entity, a lawyer should keep paramount its
interests...”.
11 Ont. 2.06(4)(a); Que. 3.05.12.
12 N.B. 11-C.6; N.S. C-7.1.
 Code of Professional Conduct 49

CHAPTER VII

OUTSIDE INTERESTS AND

THE PRACTICE OF LAW

RULE

The lawyer who engages in another profession, business or

occupation concurrently with the practice of law must not
allow such outside interest to jeopardize the lawyer’s
professional integrity, independence or competence.1

Commentary

Guiding Principles

1. The term “outside interest” covers the widest possible

range and includes activities that may overlap or be connected
with the practice of law, such as engaging in the mortgage
business, acting as a director of a client corporation, or writing
on legal subjects, as well as activities not so connected such as
a career in business, politics, broadcasting or the performing
arts. In each case the question of whether the lawyer may
properly engage in the outside interest and to what extent will
be subject to any applicable law or rule of the governing body.2

2. Whenever an overriding social, political, economic or

other consideration arising from the outside interest might
influence the lawyer’s judgment, the lawyer should be
governed by the considerations declared in the Rule relating to
50 Code of Professional Conduct

conflict of interest between lawyer and client.3

3. Where the outside interest is in no way related to the legal

services being performed for clients, ethical considerations will
usually not arise unless the lawyer’s conduct brings either the
lawyer or the profession into disrepute or impairs the lawyer’s
competence as, for example, where the outside interest
occupies so much time that clients suffer because of the
lawyer’s lack of attention or preparation.4

4. The lawyer must not carry on, manage or be involved in

any outside business, investment, property or occupation in
such a way that makes it difficult to distinguish in which
capacity the lawyer is acting in a particular transaction, or that
would give rise to a conflict of interest or duty to a client.
When acting or dealing in respect of a transaction involving an
outside interest in a business, investment, property or
occupation, the lawyer must disclose any personal interest,
must declare to all parties in the transaction or to their
solicitors whether the lawyer is acting on the lawyer’s own
behalf or in a professional capacity or otherwise, and must
adhere throughout the transaction to standards of conduct as
high as those that this Code requires of a lawyer engaged in
the practice of law.5

5. The lawyer who has an outside interest in a business,

investment, property or occupation:

(a) must not be identified as a lawyer when carrying on,

managing or being involved in such outside interest;
and
(b) must ensure that monies received in respect of the
day-to-day carrying on, operation and management of
such outside interest are deposited in an account
other than the lawyer’s trust account, unless such
monies are received by the lawyer when acting in a
 Code of Professional Conduct 51

professional capacity as a lawyer on behalf of the

outside interest.

6. In order to be compatible with the practice of law the

other profession, business or occupation:

(a) must be an honourable one that does not detract from

the status of the lawyer or the legal profession
generally; and
(b) must not be such as would likely result in a conflict of
interest between the lawyer and a client.

1 Alta. 15-S.O.P.; N.B. 14-R(a); Ont. 6.04(1); N.S. R-8. This Rule is closely
connected with the Rule relating to conflict of interest between lawyer and client.
2 Ont. 6.04(2) Commentary; N.S. R-8. In Quebec, s. 122(1)(b) of An Act respecting
the Barreau du Québec provides that a person shall become disqualified from practising
as an advocate when “he holds a position or an office incompatible with the practice
or dignity of the profession of advocate.” Que. 4.01.01(c) prohibits lawyers from
having an interest in collection agencies.
3 N.S. C-8.2.
4 Ont. 6.04(2) Commentary; N.S. C-8.3.
5 Alta. 15-R.1, R.3; N.S. C-8.4 to C-8.6.
6 N.S. C-8.7.
52 Code of Professional Conduct
 Code of Professional Conduct 53

CHAPTER VIII

PRESERVATION OF CLIENTS’
PROPERTY

RULE

The lawyer owes a duty to the client to observe all relevant

laws and rules respecting the preservation and safekeeping of
the client’s property entrusted to the lawyer. Where there are
no such laws or rules, or the lawyer is in any doubt, the lawyer
should take the same care of such property as a careful and
prudent owner would when dealing with property of like
description.1

Commentary

Guiding Principles

1. The lawyer’s duties with respect to safekeeping, preserving

and accounting for the clients’ monies and other property are
generally the subject of special rules.2 In the absence of such
rules the lawyer should adhere to the minimum standards set
out in note 3.3 “Property”, apart from clients’ monies, includes
securities such as mortgages, negotiable instruments, stocks,
bonds, etc., original documents such as wills, title deeds,
minute books, licences, certificates, etc., other papers such as
clients’ correspondence files, reports, invoices, etc., as well as
chattels such as jewellery, silver, etc.
54 Code of Professional Conduct

2. The lawyer should promptly notify the client upon

receiving any property of or relating to the client unless
satisfied that the client knows that it has come into the
lawyer’s custody.4

3. The lawyer should clearly label and identify the client’s

property and place it in safekeeping separate and apart from
the lawyer’s own property.5

4. The lawyer should maintain adequate records of clients’

property in the lawyer’s custody so that it may be promptly
accounted for, or delivered to, or to the order of, the client
upon request. The lawyer should ensure that such property is
delivered to the right person and, in case of dispute as to the
person entitled, may have recourse to the courts.6

5. The duties here expressed are closely related to those

concerning confidential information.7 The lawyer should keep
clients’ papers and other property out of sight as well as out of
reach of those not entitled to see them and should, subject to
any right of lien,8 return them promptly to the clients upon
request or at the conclusion of the lawyer’s retainer.9

Privilege

6. The lawyer should be alert to claim on behalf of clients

any lawful privilege respecting information about their affairs,
including their files and property if seized or attempted to be
seized by a third party. In this regard the lawyer should be
familiar with the nature of clients’ privilege, and with relevant
statutory provisions such as those in the Income Tax Act, the
Criminal Code, the Canadian Charter of Rights and Freedoms and
other statutes. 10
 Code of Professional Conduct 55

1 ABA-MC DR 9-102(B); ABA-MR 1.15; Alta. 7-R.3; B.C. 7.1; N.B. 7-R; N.S. R-
9; Ont. 2.07(1); Que. 3.02.06 to 3.02.08. Although the basic duty here declared may
parallel the legal duty under the law of bailment, it is reiterated as being a matter of
professional responsibility quite apart from the position in law.
2 ABA-MC EC 9-5, DR 9-102(A), (B); N.S. R-9 Guiding Principles.
3 The minimum standards are:
(a) paying into and keeping monies received or held by the lawyer for or on
behalf of clients in a trust bank account or accounts separate from the bank
account of the lawyer or the lawyer’s firm;
(b) keeping properly written books and accounts of all monies received, held or
paid by the lawyer for or on behalf of each of the lawyer’s clients which
clearly distinguish such monies from the monies of every other client and
from the monies of the lawyer and the lawyer’s firm;
(c) not retaining for an unnecessarily long period, without the express authority
of the client, monies received for or on behalf of such client;
(d) subject to rules prescribed by the governing body of the province, no
lawyer shall take fees, as opposed to disbursements, from funds held in
trust for a client without the client’s express authority unless the work
being done by the lawyer for the client has been performed and a proper
account in respect thereof has been rendered to the client. Where a client
authorizes the payment of fees from trust funds before an account has been
rendered, this arrangement should be recorded in writing and an interim
account sent to the client forthwith;
(e) the lawyer should not estimate a lump sum that may in the aggregate be
owed by a number of clients and then transfer that sum in bulk from a trust
account to the lawyer’s general account without allocating specific amounts
to each client and rendering an account to each client.
4 ABA DR 9-102 (B)(1); N.B. 7-C.1(a); N.S. C.9.1; Ont. 2.07(2).
5 N.B. 7-C.1(b); N.S. C-9.2; Ont. 2.07(3).
6 N.B. 7-C.2; N.S. C-9.3, C-9.4; Ont. 2.07(4). For example, by seeking leave to
interplead.
7 Cf. the Rule relating to confidential information (Chapter IV).
8 Cf. para. 11 of the Rule relating to withdrawal (Chapter XII). The lawyer’s
arrangements and procedures for the storage and eventual destruction of completed
files should reflect the foregoing considerations and particularly the continuing
obligation as to confidentiality. Further, statutes such as the Income Tax Act and the
operation of limitations statutes pertinent to the client’s position may preclude the
destruction of files or particular papers. In several provinces statutes provide for the
appointment of a custodian or trustee or the intervention of the syndic to conserve
clients’ property where a lawyer has died, absconded or become incapable. See, e.g.,
Legal Profession Act, R.S.B.C. 1998, c.9, s.50; An act respecting the Barreau du Québec,
R.S.Q., c.B-1, s. 76(2); Law Society Act, R.S.O. 1990, c. L8, s. 49.45.
9 N.B. 7-C.3; N.S. C-9.5, 9.6; Ont. 2.07(1) Commentary.
56 Code of Professional Conduct

10 N.B. 7-C.4; Ont. 2.07(6) Commentary.

 Code of Professional Conduct 57

CHAPTER IX

THE LAWYER AS ADVOCATE

RULE

When acting as an advocate, the lawyer must treat the court or

tribunal with courtesy and respect and must represent the
client resolutely, honourably and within the limits of the law.1

Commentary

Guiding Principles

1. The advocate’s duty to the client “fearlessly to raise every

issue, advance every argument, and ask every question,
however distasteful, which he thinks will help his client’s case”
and to endeavour “to obtain for his client the benefit of any
and every remedy and defence which is authorized by law”2
must always be discharged by fair and honourable means,
without illegality and in a manner consistent with the lawyer’s
duty to treat the court with candour, fairness, courtesy and
respect.3

Prohibited Conduct

2. The lawyer must not, for example:

(a) abuse the process of the tribunal by instituting or

prosecuting proceedings that, although legal in
58 Code of Professional Conduct

themselves, are clearly motivated by malice on the

part of the client and are brought solely for the
purpose of injuring another party;4
(b) knowingly assist or permit the client to do anything
that the lawyer considers to be dishonest or
dishonourable;5
(c) appear before a judicial officer when the lawyer, the
lawyer’s associates or the client have business or
personal relationships with such officer that give rise
to real or apparent pressure, influence or inducement
affecting the impartiality of such officer;6
(d) attempt or allow anyone else to attempt, directly or
indirectly, to influence the decision or actions of a
tribunal or any of its officials by any means except
open persuasion as an advocate;7
(e) knowingly attempt to deceive or participate in the
deception of a tribunal or influence the course of
justice by offering false evidence, misstating facts or
law, presenting or relying upon a false or deceptive
affidavit, suppressing what ought to be disclosed or
otherwise assisting in any fraud, crime or illegal
conduct;8
(f) knowingly misstate the contents of a document, the
testimony of a witness, the substance of an argument
or the provisions of a statute or like authority;9
(g) make suggestions to a witness recklessly or that he or
she knows to be false. The cross-examiner may
pursue any hypothesis that is honestly advanced on
the strength of reasonable inference, experience or
intuition;10
(h) deliberately refrain from informing the tribunal of any
pertinent adverse authority that the lawyer considers
to be directly in point and that has not been
mentioned by an opponent;11
(i) dissuade a material witness from giving evidence, or
advise such a witness to be absent;12
 Code of Professional Conduct 59

(j) knowingly permit a witness to be presented in a false

or misleading way or to impersonate another;13
(k) needlessly abuse, hector or harass a witness;14
(l) needlessly inconvenience a witness.15

Errors and Omissions

3. The lawyer who has unknowingly done or failed to do

something that, if done or omitted knowingly, would have
been in breach of this Rule and discovers it, has a duty to the
court, subject to the Rule relating to confidential information,
to disclose the error or omission and do all that can reasonably
be done in the circumstances to rectify it.16

Duty to Withdraw

4. If the client wishes to adopt a course that would involve a

breach of this Rule, the lawyer must refuse and do everything
reasonably possible to prevent it. If the client persists in such a
course the lawyer should, subject to the Rule relating to
withdrawal, withdraw or seek leave of the court to do so.17

The Lawyer as Witness

5. The lawyer who appears as an advocate should not submit

the lawyer’s own affidavit to or testify before a tribunal save as
permitted by local rule or practice, or as to purely formal or
uncontroverted matters. This also applies to the lawyer’s
partners and associates; generally speaking, they should not
testify in such proceedings except as to merely formal matters.
The lawyer should not express personal opinions or beliefs, or
assert as fact anything that is properly subject to legal proof,
cross-examination or challenge. The lawyer must not in effect
become an unsworn witness or put the lawyer’s own
credibility in issue. The lawyer who is a necessary witness
should testify and entrust the conduct of the case to someone
60 Code of Professional Conduct

else. Similarly, the lawyer who was a witness in the

proceedings should not appear as advocate in any appeal from
the decision in those proceedings.18 There are no restrictions
upon the advocate’s right to cross-examine another lawyer,
and the lawyer who does appear as a witness should not expect
to receive special treatment by reason of professional status.

Interviewing Witnesses

6. The lawyer may properly seek information from any

potential witness (whether under subpoena or not) but should
disclose the lawyer’s interest and take care not to subvert or
suppress any evidence or procure the witness to stay out of the
way.19 The lawyer shall not approach or deal with an opposite
party who is professionally represented save through or with
the consent of that party’s lawyer.20

A lawyer retained to act on a matter involving a corporation or

organization that is represented by another lawyer should not
approach

(a) a director, officer, or person likely involved in the

decision-making process for the corporation or
organization, or
(b) an employee or agent of the corporation or
organization whose acts or omissions in connection
with the matter may have exposed it to civil or
criminal liability, concerning that matter,

except to the extent that the lawyer representing the

corporation or organization consents or as otherwise
authorized or required by law. 21

Unmeritorious Proceedings

7. The lawyer should never waive or abandon the client’s

 Code of Professional Conduct 61

legal rights (for example, an available defence under a statute

of limitations) without the client’s informed consent. In civil
matters it is desirable that the lawyer should avoid and
discourage the client from resorting to frivolous or vexatious
objections or attempts to gain advantage from slips or
oversights not going to the real merits, or tactics that will
merely delay or harass the other side. Such practices can
readily bring the administration of justice and the legal
profession into disrepute.22

Encouraging Settlements and Alternative Dispute Resolution

8. Whenever the case can be settled reasonably, the lawyer

should advise and encourage the client to do so rather than
commence or continue legal proceedings. The lawyer should
consider the use of alternative dispute resolution (ADR) for
every dispute and, if appropriate, the lawyer should inform the
client of the ADR options and, if so instructed, take steps to
pursue those options.23

Duties of Prosecutor

9. When engaged as a prosecutor, the lawyer’s prime duty is

not to seek a conviction, but to present before the trial court
all available credible evidence relevant to the alleged crime in
order that justice may be done through a fair trial upon the
merits. The prosecutor exercises a public function involving
much discretion and power and must act fairly and
dispassionately. The prosecutor should not do anything that
might prevent the accused from being represented by counsel
or communicating with counsel and, to the extent required by
law and accepted practice, should make timely disclosure to
the accused or defence counsel (or to the court if the accused
is not represented) of all relevant facts and known witnesses,
whether tending to show guilt or innocence, or that would
affect the punishment of the accused.24 There is a clear
62 Code of Professional Conduct

distinction between prosecutorial discretion and professional

conduct. Only the latter can be regulated by a law society. A
law society has jurisdiction to investigate any alleged breach of
its ethical standards, even those committed by Crown
prosecutors in connection with their prosecutorial discretion.

Duties of Defence Counsel

10. When defending an accused person, the lawyer’s duty is to

protect the client as far as possible from being convicted
except by a court of competent jurisdiction and upon legal
evidence sufficient to support a conviction for the offence
charged. Accordingly, and notwithstanding the lawyer’s private
opinion as to credibility or merits, the lawyer may properly
rely upon all available evidence or defences including so-called
technicalities not known to be false or fraudulent.25

11. Admissions made by the accused to the lawyer may

impose strict limitations on the conduct of the defence and the
accused should be made aware of this. For example, if the
accused clearly admits to the lawyer the factual and mental
elements necessary to constitute the offence, the lawyer, if
convinced that the admissions are true and voluntary, may
properly take objection to the jurisdiction of the court, or to
the form of the indictment, or to the admissibility or
sufficiency of the evidence, but must not suggest that some
other person committed the offence, or call any evidence that,
by reason of the admissions, the lawyer believes to be false.
Nor may the lawyer set up an affirmative case inconsistent
with such admissions, for example, by calling evidence in
support of an alibi intended to show that the accused could
not have done, or in fact had not done, the act. Such
admissions will also impose a limit upon the extent to which
the lawyer may attack the evidence for the prosecution. The
lawyer is entitled to test the evidence given by each individual
witness for the prosecution and argue that the evidence taken
 Code of Professional Conduct 63

as a whole is insufficient to amount to proof that the accused

is guilty of the offence charged, but the lawyer should go no
further than that.26

12. A lawyer representing an accused or potential accused

must not take unfair or improper advantage of an
unrepresented complainant by attempting to influence the
complainant or potential complainant with respect to the
laying, prosecution or withdrawal of a criminal charge.

Agreement on Guilty Plea

13. Where, following investigation,

(a) the defence lawyer bona fide concludes and advises the
accused client that an acquittal of the offence charged
is uncertain or unlikely,
(b) the client is prepared to admit the necessary factual
and mental elements,27
(c) the lawyer fully advises the client of the implications
and possible consequences of a guilty plea and that
the matter of sentence is solely in the discretion of the
trial judge, and
(d) the client so instructs the lawyer, preferably in
writing,28

it is proper for the lawyer to discuss and agree tentatively with

the prosecutor to enter a plea of guilty on behalf of the client
to the offence charged or to a lesser or included offence or to
another offence appropriate to the admissions, and also on a
disposition or sentence to be proposed to the court. The
public interest and the client’s interests must not, however, be
compromised by agreeing to a guilty plea.29
64 Code of Professional Conduct

Undertakings

14. An undertaking given by the lawyer to the court or to

another lawyer in the course of litigation or other adversary
proceedings must be strictly and scrupulously carried out.
Unless clearly qualified in writing, the lawyer’s undertaking is
a personal promise and responsibility.30

Discovery Obligations

15. Where the rules of a court or tribunal require the parties

to produce documents or attend on examinations for
discovery, a lawyer, when acting as an advocate, shall explain to
the client the necessity of making full disclosure of all
documents relating to any matter in issue, and the duty to
answer to the best of the client’s knowledge, information, and
belief, any proper question relating to any issue in the action
or made discoverable by the rules of court or the rules of the
tribunal; shall assist the client in fulfilling the obligation to
make full disclosure, and shall not make frivolous requests for
the production of documents or make frivolous demands for
information at the examination for discovery.

Courtesy

16. The lawyer should at all times be courteous, civil, and act
in good faith to the court or tribunal and to all persons with
whom the lawyer has dealings in the course of an action or
proceeding. Legal contempt of court and the professional
obligation outlined here are not identical, and a consistent
pattern of rude, provocative or disruptive conduct by the
lawyer, even though not punished as contempt, might well
merit disciplinary action.31
 Code of Professional Conduct 65

Role in Adversary Proceedings

17. In adversary proceedings, the lawyer’s function as advocate

is openly and necessarily partisan. Accordingly, the lawyer is
not obliged (save as required by law or under paragraphs 2(h)
or 7 above) to assist an adversary or advance matters
derogatory to the client’s case. When opposing interests are
not represented, for example, in ex parte or uncontested
matters, or in other situations where the full proof and
argument inherent in the adversary system cannot be obtained,
the lawyer must take particular care to be accurate, candid and
comprehensive in presenting the client’s case so as to ensure
that the court is not misled.32

Communicating with Witnesses

18. When in court the lawyer should observe local rules and
practices concerning communication with a witness about the
witness’s evidence or any issue in the proceeding. Generally, it
is considered improper for counsel who called a witness to
communicate with that witness without leave of the court
while such witness is under cross-examination.33

Agreements Guaranteeing Recovery

19. In civil proceedings the lawyer has a duty not to mislead

the court about the position of the client in the adversary
process. Thus, where a lawyer representing a client in
litigation has made or is party to an agreement made before or
during the trial whereby a plaintiff is guaranteed recovery by
one or more parties notwithstanding the judgment of the
court, the lawyer shall disclose full particulars of the
agreement to the court and all other parties.
66 Code of Professional Conduct

Scope of the Rule

20. The principles of this Rule apply generally to the lawyer as

advocate and therefore extend not only to court proceedings
but also to appearances and proceedings before boards,
administrative tribunals and other bodies, regardless of their
function or the informality of their procedures.34

Relations with Jurors

21. When acting as an advocate, before the trial of a case, a

lawyer should not communicate with or cause another to
communicate with anyone that the lawyer knows to be a
member of the jury panel. A lawyer may investigate a person
who is a prospective juror to ascertain any basis for challenge,
but in doing so must not directly or indirectly communicate
with that person or with any member of that person’s family.
When acting as an advocate, a lawyer should disclose to the
judge and opposing counsel any information of which the
lawyer is aware that a juror or perspective juror (a) has or may
have an interest, direct or indirect, in the outcome of the case,
(b) is acquainted with or connected in any manner with the
presiding judge, any counsel or any party, or (c) is acquainted
with or connected in any manner with any person who has
appeared or who is expected to appear as a witness, unless the
judge and opposing counsel are already aware of the
information. A lawyer should promptly disclose to the court
any information of which the lawyer is aware concerning
improper conduct by a member of a jury panel or by a juror
toward another member of the panel, another juror, or a
member of a juror’s family. Except as permitted by law, when
acting as an advocate, a lawyer should not during a jury trial
communicate with or cause another to communicate with any
member of the jury. A lawyer who is not connected with the
case before a jury should not communicate with or cause
another to communicate with any member of the jury about
 Code of Professional Conduct 67

the case. A lawyer must have no discussion with a member of

the jury about its deliberations after trial.35
1 Alta. 10-S.O.P.; ABA-MC Canon 7; ABA-MR 3; N.B. 8-R; N.S. R-10; Ont.
4.01(1). “The concept that counsel is the mouth-piece of his client and that his
speech is the speech of the client is as unfortunate as it is inaccurate. He is not the
agent or delegate of his client. Within proper bounds, however, counsel must be
fearless and independent in the defence of his client’s rights.... He must be
completely selfless in standing up courageously for his client’s rights, and he should
never expose himself to the reproach that he has sacrificed his client’s interests on
the altar of expediency...” per Schroeder J. A., “Some Ethical Problems in Criminal
Law” in Law Soc. U.C. Special Lectures (1963) 87 at 102. An additional reference is
The Advocates’ Society, Principles of Civility for Advocates (Ontario), see Appendix.
2 The sources of the quotations are (a) per Lord Reid in Rondel v. Worsley (1969) 1
A.C. 191 at 227 and (b) Canon 3(5) of the Canons of Legal Ethics of the Canadian Bar
Association, adopted in 1920.
3 ABA-MC EC 7-1, 7-19; N.B. 8-R(b); N.S. R-9 Guiding Principle; Ont. 4.01(1)
Commentary.
4 ABA-MC DR 7-102(A)(1); B.C. 8(1)(a).
5 B.C. 8(1)(b).
6 ABA-MC Canon 9, DR 9-101; B.C. 8(1)(c).
7 ABA-MC EC 7-34; B.C. 8(1)(d).
8 Alta. 10-R.14, R. 20(b); ABA-MC EC 7-25 to 7-27, DR 7-102(A)(3); ABA-MR
3.3(a)(1)(3). “The swearing of an untrue affidavit...is perhaps the most obvious
example of conduct which a solicitor cannot knowingly permit.... He cannot
properly, still less can he consistently with his duty to the Court, prepare and place a
perjured affidavit upon file.... A solicitor who has innocently put on the file an
affidavit by his client which he has subsequently discovered to be certainly false owes
it to the Court to put the matter right at the earliest date if he continues to act...” per
Viscount Maugham in Myers v. Elman (1940), A.C. 282 at 293-94 (H.L.).
“[Counsel] had full knowledge of the impropriety of the paragraphs in the
affidavit...[and] is bound to accept responsibility for [them].... If he knows that his
client is making false statements under oath and does nothing to correct it, his
silence indicates, at the very least, a gross neglect of duty,” per McLennan J.A. in Re
Ontario Crime Commission (1962), 37 D.L.R. (2d) 382 at 391 (Ont. C.A.).
9 ABA-MC DR 7-102(A)(5).
10 Alta. 10-R.19; ABA-MC EC 7-25, DR 7-106(C)(I); B.C. 8(1)(e); R. v. Lyttle,
[2004] 1 S.C.R. 193.
11 ABA-MC EC 7-23, DR 7-106(B)(1); ABA MR 3.3(a)(2); B.C. 8(1)(f). See Glebe
Sugar v. Greenock Trustees (1921), W.N. 85 (H.L.) for a strong statement by Lord
Birkenhead on the duty of counsel to disclose to the court authorities bearing one
way or the other: “The extreme impropriety of such a course [withholding a known
pertinent authority] could not be made too plain.”
68 Code of Professional Conduct

12 ABA-MC DR 7-109(B); B.C. 8(1)(g).

13 Alta. 10-R.24; B.C. 8(1)(h); N.B. 8-C.10.
14 Alta. 10-R.21.
15 Ont. 4.01(2).
16 ABA-MC DR 7-102(B), DR 4-101 (C)(2); N.B. 8-C.11; Ont. 4.01(5).
17 ABA-MC DR 2-110 (B)(2); ABA-MR 3.3[15]; B.C. 8(7), 8(8).
18 ABA-MC EC 7-24, DR 7-106 (C)(3), (4); ABA-MR 3.7; B.C. 8(9), (10); N.B. 8-
C.6; N.S. C-10.11; Ont. 4.02. “It is improper, in my opinion, for Counsel for the
Crown to express his opinion as to the guilt or innocence of the accused. In the
article to which I have referred it is said that it is because the character or eminence
of a counsel is to be wholly disregarded in determining the justice or otherwise of
his client’s cause that it is an inflexible rule of forensic pleading that an advocate shall
not, as such, express his personal opinion of or his belief in his client’s cause,” per
Locke J. in Boucher v. The Queen, [1955] S.C.R. 16 at 26.
19 ABA-MC DR 7-109; B.C. 8(12), (12.2), (12.3); N.B. 8-C.4 (a), (b); Ont. 4.03(1).
20 ABA-MC DR 7-104(A)(1); B.C. 8(12.1); N.B. 8-C.4(c); Ont. 4.03(2).
21 Ont. 4.03(3).
22 ABA-MC EC 7-38, 7-39, DR 7-106(C)(5); N.B. 8-C.7, C.8; N.S. C-10.1.
23 N.B. 8-C.1, C.2(a), (b); N.S. C-10.2, 10.2A.
24 Alta. 10-R.28; ABA-MC EC 7-13, 7-14, DR 7-103; ABA-MR 3.8; B.C. 8(18);
N.B. 8-C.13; Ont. 4.01(3). “It cannot be overemphasized that the purpose of a
criminal prosecution is not to obtain a conviction, it is to lay before the jury what the
Crown considers to be credible evidence relevant to what is alleged to be a crime.
Counsel have a duty to see that all available legal proof of the facts is presented; it
should be done firmly and pressed to its legitimate strength but it must also be done
fairly. The role of prosecutor excludes any notion of winning or losing; his function
is a matter of public duty than which in civil life there can be none charged with
greater personal responsibility. It is to be performed with an ingrained sense of the
dignity, the seriousness and the justness of judicial proceedings,” per Rand J. in
Boucher v. The Queen, [1955] S.C.R. 16 at 23-24. See also Martin, “The Role and
Responsibility of the Defence Advocate” (1969-70) 12 Crim. L.Q. 376 at 386-87.
25 ABA-MC EC 7-24, DR 7-106(C)(4); N.B. 8-C.14a,b,c; N.S. C-10.3, 10.4; Ont.
4.01(1) Commentary.
26 N.B. 8-C.14(d); N.S. C-10.5 to 10.7; Ont. 4.01(9) Commentary.
27 ABA-MC EC 7.7; B.C. 8(20); N.B. 8-C.15; N.S. C-10.8; Ont. 4.01(9)
Commentary.
28 Alta. 10-R.27(b).
29 Alta. 10-R.27(a).
30 ABA-MC EC 7-38, DR 7-106(C)(5); Ont. 4.01(7) and Commentary; Ont.
4.01(5).
31 ABA-MC EC 7-36, DR 7-106(C)(6); Ont. 4.01(6) and Commentary.
32 ABA-MC EC 7-19; N.B. 8-C.3(a),(c); Ont. 4.01(1) Commentary.
 Code of Professional Conduct 69

33 N.B. 8-C.5; Ont. 4.04 provides as follows: “Subject to the direction of the
tribunal, the lawyer shall observe the following rules respecting communication with
witnesses giving evidence:
(a) during examination-in-chief, the examining lawyer may discuss with the
witness any matter that has not been covered in the examination up to that
point;
(b) during examination-in-chief by another lawyer of a witness who is
unsympathetic to the lawyer’s cause, the lawyer not conducting the
examination-in-chief may properly discuss the evidence with the witness;
(c) between completion of examination-in-chief and commencement of cross-
examination of the lawyer’s own witness, the lawyer ought not to discuss
the evidence given in chief or relating to any matter introduced or touched
upon during the examination-in-chief;
(d) during cross-examination by an opposing lawyer, the witness’s own lawyer
ought not to have any conversation with the witness about the witness’s
evidence or any issue in the proceeding;
(e) between completion of cross-examination and commencement of re-
examination, the lawyer who is going to re-examine the witness ought not
to have any discussion about evidence that will be dealt with on re-
examination;
(f) during cross-examination by the lawyer of a witness unsympathetic to the
cross-examiner’s cause, the lawyer may discuss the witness’s evidence with
the witness;
(g) during cross-examination by the lawyer of a witness who is sympathetic to
that lawyer’s cause, any conversations ought to be restricted in the same
way as communications during examination-in-chief of one’s own witness;
and
(h) during re-examination of a witness called by an opposing lawyer, if the
witness is sympathetic to the lawyer’s cause the lawyer ought not to discuss
the evidence to be given by that witness during re-examination. The lawyer
may, however, properly discuss the evidence with a witness who is adverse
in interest.
If any question arises whether the lawyer’s behaviour may be in violation of this
rule, it will often be appropriate to obtain the consent of the opposing lawyer or
leave of the tribunal before engaging in conversations that may be considered
improper.” However, “It is submitted with respect that in some respects [this
commentary] may inhibit the discovery of truth and go beyond what was the
practice in High Court,” per Sopinka and Polin, The Trial of an Action, p. 106.
34 ABA-MC EC 7-15; N.B. 8-C.16.
35 ABA-MC EC 7-29; Ont. 4.05.
70 Code of Professional Conduct
 Code of Professional Conduct 71

CHAPTER X

THE LAWYER IN PUBLIC OFFICE

RULE

The lawyer who holds public office should, in the discharge of

official duties, adhere to standards of conduct as high as those
that these rules require of a lawyer engaged in the practice of
law.1

Commentary

Guiding Principles

1. The Rule applies to the lawyer who is elected or appointed

to legislative or administrative office at any level of
government, regardless of whether the lawyer attained such
office because of professional qualifications.2 Because such a
lawyer is in the public eye, the legal profession can more
readily be brought into disrepute by failure on the lawyer’s
part to observe its professional standards of conduct.3

Conflicts of Interest

2. The lawyer who holds public office must not allow

personal or other interests to conflict with the proper
discharge of official duties. The lawyer holding part-time
public office must not accept any private legal business where
duty to the client will or may conflict with official duties. If
72 Code of Professional Conduct

some unforeseen conflict arises, the lawyer should terminate

the professional relationship, explaining to the client that
official duties must prevail. The lawyer who holds a full-time
public office will not be faced with this sort of conflict, but
must nevertheless guard against allowing the lawyer’s
independent judgment in the discharge of official duties to be
influenced by the lawyer’s own interest, or by the interests of
persons closely related to or associated with the lawyer, or of
former or prospective clients, or of former or prospective
partners or associates.4

3. In the context of the preceding paragraph, persons closely

related to or associated with the lawyer include a spouse, child,
or any relative of the lawyer (or of the lawyer’s spouse) living
under the same roof, a trust or estate in which the lawyer has a
substantial beneficial interest or for which the lawyer acts as a
trustee or in a similar capacity, and a corporation of which the
lawyer is a director or in which the lawyer or some closely
related or associated person holds or controls, directly or
indirectly, a significant number of shares.5

4. Subject to any special rules applicable to a particular public

office, the lawyer holding such office who sees the possibility
of a conflict of interest should declare such interest at the
earliest opportunity and take no part in any consideration,
discussion or vote with respect to the matter in question.6

Appearances before Official Bodies

5. When the lawyer or any of the lawyer’s partners or

associates is a member of an official body such as, for example,
a school board, municipal council or governing body, the
lawyer should not appear professionally before that body.
However, subject to the rules of the official body, it would not
be improper for the lawyer to appear professionally before a
committee of such body if such partner or associate is not a
 Code of Professional Conduct 73

member of that committee.7

6. The lawyer should not represent in the same or any

related matter any persons or interests that the lawyer has been
concerned with in an official capacity. Similarly, the lawyer
should avoid advising upon a ruling of an official body of
which the lawyer either is a member or was a member at the
time the ruling was made.

Disclosure of Confidential Information8

7. By way of corollary to the Rule relating to confidential

information, the lawyer who has acquired confidential
information by virtue of holding public office should keep
such information confidential and not divulge or use it even
though the lawyer has ceased to hold such office. As to the
taking of employment in connection with any matter in
respect of which the lawyer had substantial responsibility or
confidential information, see commentary 3 of the Rule
relating to avoiding questionable conduct (Chapter XIX).9

Disciplinary Action

8. Generally speaking, a governing body will not be

concerned with the way in which a lawyer holding public
office carries out official responsibilities, but conduct in office
that reflects adversely upon the lawyer’s integrity or
professional competence may subject the lawyer to disciplinary
action.10

1 Alta. 12-S.O.P.; ABA-MC 8.8; DR 8-101(A); ABA-MR 1.11; N.B. 17-R; N.S. R-
16; Ont. 6.05(1); Que. 3.05.09.
2 Common examples include Senators, Members of the House of Commons,
members of provincial legislatures, cabinet ministers, municipal councillors, school
trustees, members and officials of boards, commissions, tribunals and departments,
74 Code of Professional Conduct

commissioners of inquiry, arbitrators and mediators, Crown prosecutors and many

others. For a general discussion, see Woodman, “The Lawyer in Public Life”,
Pitblado Lectures (Manitoba, 1971), p. 129.
3 Ont. 6.05(1) Commentary; N.S. R-16 Guiding Principles, C-16.1.
4 ABA-MR 1.11(d); N.B. 17-C.2(a), (b), (c); N.S. C-16.2; Ont. 6.05(2)
Commentary.
5 N.S. C-16.4.
6 N.B. 17-C.3; N.S. C-16.5; Ont. 6.05(2) Commentary.
7 N.B. 17-C.4; N.S. C-16.6; Ont. 6.05(4).
8 ABA-MC 9-101(A), (B); N.B. 17-C.5(a), (b); N.S. C-16.8; Ont. 3.05.10
Commentary.
9 ABA-MR 1.11(c); N.B. 17-C.6; N.S. C-16.8; Ont. 6.05(5) Commentary.
10 N.B. 17-C.9; N.S. C-16.9. In Barreau de Montreal v. Claude Wagner (1968), Q.B.
235 (Que. Q.B.) it was held that the respondent, then provincial Minister of Justice,
was not subject to the disciplinary jurisdiction of the Bar in respect of a public
speech in which he had criticized the conduct of a judge because he was then
exercising his official or “Crown” functions. In Gagnon v. Bar of Montreal (1959), B.R.
92 (Que.) it was held that on the application for readmission to practice by a former
judge, his conduct while in office might properly be considered by admissions
authorities.
 Code of Professional Conduct 75

CHAPTER XI

FEES

RULE

The lawyer shall not:

(a) stipulate for, charge or accept any fee that is not fully
disclosed, fair and reasonable;1
(b) appropriate any funds of the client held in trust or
otherwise under the lawyer’s control for or on
account of fees without the express authority of the
client, save as permitted by the rules of the governing
body.2

Commentary

Factors to be Considered

1. A fair and reasonable fee will depend on and reflect such

factors as:

(a) the time and effort required and spent;

(b) the difficulty and importance of the matter;
(c) whether special skill or service has been required and
provided;
(d) the customary charges of other lawyers of equal
standing in the locality in like matters and
circumstances;
76 Code of Professional Conduct

(e) in civil cases the amount involved, or the value of the

subject matter;
(f) in criminal cases the exposure and risk to the client;
(g) the results obtained;
(h) tariffs or scales authorized by local law;
(i) such special circumstances as loss of other
employment, urgency and uncertainty of reward;
(j) any relevant agreement between the lawyer and the
client.3

A fee will not be fair and reasonable and may subject the
lawyer to disciplinary proceedings if it is one that cannot be
justified in the light of all pertinent circumstances, including
the factors mentioned, or is so disproportionate to the services
rendered as to introduce the element of fraud or dishonesty, or
undue profit.4

2. It is in keeping with the best traditions of the legal

profession to reduce or waive a fee in cases of hardship or
poverty, or where the client or prospective client would
otherwise effectively be deprived of legal advice or
representation.5

Avoidance of Controversy

3. Breaches of this Rule and misunderstandings about fees

and financial matters bring the legal profession into disrepute
and reflect adversely upon the administration of justice. The
lawyer should try to avoid controversy with the client over
fees and should be ready to explain the basis for charges,
especially if the client is unsophisticated or uninformed about
the proper basis and measurements for fees. The lawyer
should give the client an early and fair estimate of fees and
disbursements, pointing out any uncertainties involved, so that
the client may be able to make an informed decision. When
something unusual or unforeseen occurs that may
 Code of Professional Conduct 77

substantially affect the amount of the fee, the lawyer should

forestall misunderstandings or disputes by explaining this to
the client.6

Interest on Overdue Accounts

4. Save where permitted by law or local practice, the lawyer

should not charge interest on an overdue account except by
prior agreement with the client and then only at a reasonable
rate.7

Apportionment and Division of Fees

5. The lawyer who acts for two or more clients in the same
matter is under a duty to apportion the fees and disbursements
equitably among them in the absence of agreement otherwise.8

6. A fee will not be a fair one within the meaning of the Rule
if it is divided with another lawyer who is not a partner or
associate unless (a) the client consents, either expressly or
impliedly, to the employment of the other lawyer and (b) the
fee is divided in proportion to the work done and
responsibility assumed.9

Hidden Fees

7. The fiduciary relationship that exists between lawyer and

client requires full disclosure in all financial matters between
them and prohibits the lawyer from accepting any hidden fees.
No fee, reward, costs, commission, interest, rebate, agency or
forwarding allowance or other compensation whatsoever
related to the professional employment may be taken by the
lawyer from anyone other than the client without full
disclosure to and consent of the client. Where the lawyer’s fees
are being paid by someone other than the client, such as a
legal aid agency, a borrower, or a personal representative, the
78 Code of Professional Conduct

consent of such other person will be required. So far as

disbursements are concerned, only bona fide and specified
payments to others may be included. If the lawyer is
financially interested in the person to whom the
disbursements are made, such as an investigating, brokerage or
copying agency, the lawyer shall expressly disclose this fact to
the client.10

Sharing Fees with Non-Lawyers

8. Any arrangement whereby the lawyer directly or indirectly

shares, splits or divides fees with notaries public, law students,
clerks or other non-lawyers who bring or refer business to the
lawyer’s office is improper and constitutes professional
misconduct. It is also improper for the lawyer to give any
financial or other reward to such persons for referring
business.11

9. The lawyer shall not enter into a lease or other

arrangement whereby a landlord or other person directly or
indirectly shares in the fees or revenues generated by the law
practice.12

Contingent Fees

10. It is proper for the lawyer to enter into an arrangement

with the client for a contingent fee, if the fee is fair and
reasonable and the lawyer adheres to any legislation, rules of
court or local practice relating to such an arrangement.13

1 Alta. 13-S.O.P.; ABA-MC EC 2-17 to EC 2-19; ABA-MR DR 2-106; B.C. 9(1);

N.B. 9-R(a); N.S. R-12; Ont. 2.08(1); Que. 3.08.01.
2 N.B. 9-R(b); Ont. 2.08(12).
3 Alta. 13-R.1; ABA-MC DR 2-106(B); ABA-MR 1.5(a); N.B. 9-C.2(a); N.S. R-12
Guiding Principles; Ont. 2.08 Commentary; Que. 3.08.02.
 Code of Professional Conduct 79

4 N.B. 9-C.2(b).
5 ABA-MC EC 2-16, 2-25; N.B. 9-C.1; N.S. C-12.2; Ont. 2.08 Commentary.
6 Alta. 13-R.2, R.4; ABA-MR 1.5(b); N.B. 9-C.3(a), (b); N.S. C-12.1; Ont. 2.08
Commentary; Que. 3.08.04, 3.08.05.
7 N.B. 9-4(a), (b); N.S. C-12.3; Ont. 2.08 Commentary; Que. 3.08.07.
8 N.B. 9-C.6; N.S. C-12.4; Ont. 2.08(7).
9 Alta. 13-R.7(b); ABA-MC DR 2-107(A); ABA-MR 1.5(e); N.B. 9-C.7(ii); N.S. C-
12.5; Ont. 2.08(8).
10 B.C. 9(7) to 9(9); N.B. 9-C.9(a) to (c); N.S. C-12.6 to 12.8; Ont. 2.08
Commentary.
11 Alta. 13-R.7(c); B.C. 9(6); N.B. 9-C.8(i), (ii); N.S. C-12.9; Ont. 2.08(10); Que.
3.05.14.
12 ABA-MC EC 2-20, EC 5-7, DR 5-103(A)(2); N.B. 9-C.8(iii); N.S. C-12.10.
13 Alta. 13-R.3; ABA-MC EC 2-20; ABA-MR 1.5(c), (d)(2); N.B. 9-C.10; N.S. C-
12.11; Ont. 2.08(3). For many years, Ontario was the only jurisdiction in North
America in which contingent fees were prohibited. In 2002, as a result of the
Ontario Court of Appeal’s decision in McIntyre Estate v. Ontario (Attorney General)
(2002), 61 O.R. (3d) 257, the Law Society of Upper Canada amended its Rules of
Professional Conduct to allow lawyers to enter into contingent fee agreements except in
family law or criminal or quasi-criminal matters: see Ont. 2.08 (3) – (5) and
accompanying commentary.
80 Code of Professional Conduct
 Code of Professional Conduct 81

CHAPTER XII

WITHDRAWAL

RULE

The lawyer owes a duty to the client not to withdraw services

except for good cause and upon notice appropriate in the
circumstances.1

Commentary

Guiding Principles

1. Although the client has a right to terminate the lawyer-

client relationship at will, the lawyer does not enjoy the same
freedom of action. Having once accepted professional
employment the lawyer should complete the task as ably as
possible unless there is justifiable cause for terminating the
relationship.2

2. The lawyer who withdraws from employment should act

so as to minimize expense and avoid prejudice to the client,
doing everything reasonably possible to facilitate the
expeditious and orderly transfer of the matter to the successor
lawyer.3

3. Where withdrawal is required or permitted by this Rule

the lawyer must comply with all applicable rules of court as
well as local rules and practice.4
82 Code of Professional Conduct

Obligatory Withdrawal

4. In some circumstances the lawyer will be under a duty to

withdraw. The obvious example is following discharge by the
client. Other examples are:

(a) if the lawyer is instructed by the client to do

something inconsistent with the lawyer’s duty to the
court or tribunal and, following explanation, the client
persists in such instructions;
(b) if the client is guilty of dishonourable conduct in the
proceedings or is taking a position solely to harass or
maliciously injure another;
(c) if it becomes clear that the lawyer’s continued
employment will lead to a breach of these Rules such
as, for example, a breach of the Rules relating to
conflict of interest; or
(d) if it develops that the lawyer is not competent to
handle the matter. In all these situations there is a
duty to inform the client that the lawyer must
withdraw.5

Optional Withdrawal

5. Situations where a lawyer would be entitled to withdraw,

although not under a positive duty to do so, will as a rule arise
only where there has been a serious loss of confidence
between lawyer and client. Such a loss of confidence goes to
the very basis of the relationship. Thus, the lawyer who is
deceived by the client will have justifiable cause for
withdrawal. Again, the refusal of the client to accept and act
upon the lawyer’s advice on a significant point might indicate
such a loss of confidence. At the same time, the lawyer should
not use the threat of withdrawal as a device to force the client
into making a hasty decision on a difficult question. The
lawyer may withdraw if unable to obtain instructions from the
client.6
 Code of Professional Conduct 83

Non-Payment of Fees

6. Failure on the part of the client after reasonable notice to

provide funds on account of disbursements or fees will justify
withdrawal by the lawyer unless serious prejudice to the client
would result.7

Notice to Client

7. No hard and fast rules can be laid down as to what will

constitute reasonable notice prior to withdrawal. Where the
matter is covered by statutory provisions or rules of court,
these will govern. In other situations the governing principle is
that the lawyer should protect the client’s interests so far as
possible and should not desert the client at a critical stage of a
matter or at a time when withdrawal would put the client in a
position of disadvantage or peril.8

Duty Following Withdrawal

8. Upon discharge or withdrawal the lawyer should:

(a) deliver in an orderly and expeditious manner to or to

the order of the client all papers and property to
which the client is entitled;9
(b) give the client all information that may be required
about the case or matter;
(c) account for all funds of the client on hand or
previously dealt with and refund any remuneration
not earned during the employment;10
(d) promptly render an account for outstanding fees and
disbursements;11
(e) cooperate with the successor lawyer for the purposes
outlined in paragraph.12

The obligation in clause (a) to deliver papers and property is

84 Code of Professional Conduct

subject to the lawyer’s right of lien referred to in paragraph 11.

In the event of conflicting claims to such papers and property,
the lawyer should make every effort to have the claimants
settle the dispute.13

9. Cooperation with the successor lawyer will normally

include providing any memoranda of fact and law that have
been prepared by the lawyer in connection with the matter,
but confidential information not clearly related to the matter
should not be divulged without the express consent of the
client.14

10. The lawyer acting for several clients in a case or matter

who ceases to act for one or more of them should cooperate
with the successor lawyer or lawyers to the extent permitted
by this Code, and should seek to avoid any unseemly rivalry,
whether real or apparent.15

Lien for Unpaid Fees

11. Where upon the discharge or withdrawal of the lawyer the

question of a right of lien for unpaid fees and disbursements
arises, the lawyer should have due regard to the effect of its
enforcement upon the client’s position. Generally speaking,
the lawyer should not enforce such a lien if the result would
be to prejudice materially the client’s position in any
uncompleted matter.16

Duty of Successor Lawyer

12. Before accepting employment, the successor lawyer

should be satisfied that the former lawyer approves, or has
withdrawn or been discharged by the client. It is quite proper
for the successor lawyer to urge the client to settle or take
reasonable steps toward settling or securing any account owed
to the former lawyer, especially if the latter withdrew for good
 Code of Professional Conduct 85

cause or was capriciously discharged. But if a trial or hearing is

in progress or imminent, or if the client would otherwise be
prejudiced, the existence of an outstanding account should not
be allowed to interfere with the successor lawyer acting for the
client.17

Dissolution of Law Firm

13. When a law firm is dissolved, this will usually result in the
termination of the lawyer-client relationship as between a
particular client and one or more of the lawyers involved. In
such cases, most clients will prefer to retain the services of the
lawyer whom they regarded as being in charge of their
business prior to the dissolution. However, the final decision
rests in each case with the client, and the lawyers who are no
longer retained by the client should act in accordance with the
principles here set out, and in particular commentary.18

1 Alta. 14-S.O.P.; ABA-MC EC 2-32, DR 2-110(A), (C); N.B. 10-R; N.S. R-11;
Ont. 2.09(1); Que. 3.03.04. For cases, see 4 Can. Abr. (2d) under “Barristers and
Solicitors: Termination of Relationship”, paras. 101-02 and supplements.
2 N.B. 10-C.1(a); N.S. R-11 Guiding Principle 1; Ont. 2.09(1) Commentary.
3 ABA-MC EC 2-32, DR 2-110(A); N.B. 10-C.1(b)(i),(ii); N.S. R-11 Guiding
Principle 2; Ont. 2.09(8). Provincial Rules of Court provide for the giving of notice
of change of solicitors and for the bringing of motions for leave to withdraw. For
cases, see 4 Can. Abr. (2d) under “Barristers and Solicitors: Change of Solicitors”,
paras. 342-58 and supplements. In legal aid cases, provincial regulations may also
require notice to the plan administrators; see, e.g., in R.R.O. 1990, Reg. 710, s.
63(1)(a).
4 N.B. 10-C.1(b)(iii); N.S. R-11 Guiding Principle 3.
5 Alta. 14-R.1; ABA-MC DR 2-110(B); ABA-MR 1.16(a); B.C. 10(1); N.B. 10-C. 3;
N.S. C-11.1, C-11.2; Ont. 2.09(7); Que. 3.02.09.
6 Alta. 14-R.2; ABA-MR 1.16(b); B.C. 10(2); N.B. 10-C.4(a); N.S. C-11.3 to C-
11.5; Ont. 2.09(2); Que. 3.03.04, 3.03.05. Failure to instruct counsel constitutes
repudiation which counsel could accept and terminate the employment.
7 B.C. 10(6), 10(7); N.B. 10-C.4(vi), 4(b); N.S. C-11.6; Ont. 2.09(3).
8 ABA-MC DR 2-110(A)(2); N.B. 10-C.2(b); N.S. C-11.7, 11.8; Ont. 2.09(1)
Commentary.
86 Code of Professional Conduct

9 B.C. 10(8)(d)(ii).
10 B.C. 10(8)(d)(i).
11 Alta. 14-R.4.
12 Alta. 14-R.3; B.C. 10(8)(e).
13 ABA-MC EC 2-32; ABA-MR 1.16(d); N.B. 10-C.5(a); N.S. C-11.9, 11.10; Ont.
2.09(9).
14 N.B. 10-C.5(a); N.S. C-11.11.
15 N.B. 10-C.5(b); N.S. C-11.12; Ont. 2.09(9) Commentary.
16 Alta. 13-R.9; N.B. 10-C.6; N.S. C-11.13; Ont. 2.09(9) Commentary.
17 Alta. 14-R.5; N.B. 10-C.7; N.S. C-1.14, 11.15; Ont. 2.09(10).
18 N.B. 10-C.8; N.S. C-11.16, 11.17; Ont. 2.09(7) Commentary.
 Code of Professional Conduct 87

CHAPTER XIII

THE LAWYER AND THE

ADMINISTRATION OF JUSTICE

RULE

The lawyer should encourage public respect for and try to

improve the administration of justice.1

Commentary

Guiding Principles

1. The admission to and continuance in the practice of law

imply a basic commitment by the lawyer to the concept of
equal justice for all within an open, ordered and impartial
system. However, judicial institutions will not function
effectively unless they command the respect of the public.
Because of changes in human affairs and the imperfection of
human institutions, constant efforts must be made to improve
the administration of justice and thereby maintain public
respect for it.2

2. The lawyer, by training, opportunity and experience, is in

a position to observe the workings and discover the strengths
and weaknesses of laws, legal institutions and public
authorities. The lawyer should, therefore, lead in seeking
improvements in the legal system, but any criticisms and
proposals should be bona fide and reasoned.3
88 Code of Professional Conduct

Scope of the Rule

3. The obligation outlined in the Rule is not restricted to the

lawyer’s professional activities but is a general responsibility
resulting from the lawyer’s position in the community. The
lawyer’s responsibilities are greater than those of a private
citizen. The lawyer must not subvert the law by counselling or
assisting in activities that are in defiance of it and must do
nothing to lessen the respect and confidence of the public in
the legal system of which the lawyer is a part. The lawyer
should take care not to weaken or destroy public confidence in
legal institutions or authorities by broad irresponsible
allegations of corruption or partiality. The lawyer in public life
must be particularly careful in this regard because the mere
fact of being a lawyer will lend weight and credibility to any
public statements. For the same reason, the lawyer should not
hesitate to speak out against an injustice. (As to test cases, see
commentary 8 of the Rule relating to advising clients.)4

Criticism of the Tribunal

4. Although proceedings and decisions of tribunals are

properly subject to scrutiny and criticism by all members of
the public, including lawyers, members of tribunals are often
prohibited by law or custom from defending themselves.
Their inability to do so imposes special responsibilities upon
lawyers. Firstly, the lawyer should avoid criticism that is petty,
intemperate or unsupported by a bona fide belief in its real
merit, bearing in mind that in the eyes of the public,
professional knowledge lends weight to the lawyer’s
judgements or criticism. Secondly, if the lawyer has been
involved in the proceedings, there is the risk that any criticism
may be, or may appear to be, partisan rather than objective.
Thirdly, where a tribunal is the object of unjust criticism, the
lawyer, as a participant in the administration of justice, is
uniquely able to and should support the tribunal, both because
 Code of Professional Conduct 89

its members cannot defend themselves and because the lawyer

is thereby contributing to greater public understanding of and
therefore respect for the legal system.5

Improving the Administration of Justice

5. The lawyer who seeks legislative or administrative changes

should disclose whose interest is being advanced, whether it
be the lawyer’s interest, that of a client, or the public interest.
The lawyer may advocate such changes on behalf of a client
without personally agreeing with them, but the lawyer who
purports to act in the public interest should espouse only
those changes that the lawyer conscientiously believes to be in
the public interest.6

1 Alta. 1-R.1 to R.3; ABA-MC Canon 8, DR 1-102 (A)(5); N.B. 20-R; N.S. R-21;
Ont. 4.06(1); Que. 2.01 to 2.10.
2 N.B. 20-C.2; N.S. R-21 Guiding Principle; Ont. 4.06(1) Commentary. Cf. the
traditional barristers’ oath: “...to protect and defend the right and interest of such of
your fellow-citizens as may employ you.... You shall not pervert the law to favour or
prejudice any man...”. ABA-MC ECs 8-1, 8-2, 8-9: “Changes in human affairs and
imperfections in human institutions make necessary constant efforts to maintain and
improve our legal system. This system should function in a manner that commands
public respect and fosters the use of legal remedies to achieve redress of grievances....
Rules of law are deficient if they are not just, understandable and responsive to the
needs of society.... The advancement of our legal system is of vital importance in
maintaining the rule of law and in facilitating orderly changes...”.
3 ABA-MC EC 8-1, 8-2, 8-9; N.B. 20-C.3(a); N.S. R-21 Guiding Principle; Ont.
4.06(1) Commentary. ABA-MC ECs 8-1, 8-2: “By reason of education and
experience, lawyers are especially qualified to recognize deficiencies in the legal
system and to initiate corrective measures therein.... [The lawyer] should encourage
the simplification of laws and the repeal or amendment of laws that are outmoded.
Likewise, legal procedures should be improved whenever experience indicates a
change is needed.”
4 Alta. 1-R.5; N.S. C-21.1 to 21.4; Ont. 4.06(1).
5 Alta. 1-C.2; ABA-MC EC 8-6; N.B. 20-C.4; N.S. C-21.5 to 21.8; Ont. 4.06(1)
Commentary; Que. 2.01.
6 Alta. 1-C.2; ABA-MC EC 8-4; N.B. 20-C.3(b), (c); N.S. C-21.9; Ont. 4.06(2) and
Commentary.
90 Code of Professional Conduct
 Code of Professional Conduct 91

CHAPTER XIV

ADVERTISING, SOLICITATION AND

MAKING LEGAL SERVICES AVAILABLE

RULE

Lawyers should make legal services available to the public in

an efficient and convenient manner that will command respect
and confidence, and by means that are compatible with the
integrity, independence and effectiveness of the profession.1

Commentary

Guiding Principles

1. It is essential that a person requiring legal services be able

to find a qualified lawyer with a minimum of difficulty or
delay. In a relatively small community where lawyers are well
known, the person will usually be able to make an informed
choice and select a qualified lawyer in whom to have
confidence. However, in larger centres these conditions will
often not obtain. As the practice of law becomes increasingly
complex and many individual lawyers restrict their activities to
particular fields of law, the reputations of lawyers and their
competence or qualification in particular fields may not be
sufficiently well known to enable a person to make an
informed choice. Thus one who has had little or no contact
with lawyers or who is a stranger in the community may have
difficulty finding a lawyer with the special skill required for a
92 Code of Professional Conduct

particular task. Telephone directories, legal directories and

referral services may help find a lawyer, but not necessarily the
right one for the work involved. Advertising of legal services
by the lawyer may assist members of the public and thereby
result in increased access to the legal system. Where local rules
permit, the lawyer may, therefore, advertise legal services to
the general public.2

2. When considering whether advertising in a particular area

meets the public need, consideration must be given to the
clientele to be served. For example, in a small community
with a stable population a person requiring a lawyer for a
particular purpose will not have the same difficulty in selecting
one as someone in a newly established community or a large
city. Thus the governing body must have freedom of action in
determining the nature and content of advertising that will
best meet the community need.

3. Despite the lawyer’s economic interest in earning a living,

advertising must comply with any rules prescribed by the
governing body, must be consistent with the public interest,
and must not detract from the integrity, independence or
effectiveness of the legal profession. Advertising must not
mislead the uninformed or arouse unattainable hopes and
expectations, and must not adversely affect the quality of legal
services, or be so undignified or otherwise offensive as to be
prejudicial to the interests of the public or the legal
profession.3

Finding a Lawyer

4. The lawyer who is consulted by a prospective client

should be ready to assist in finding the right lawyer to deal
with the problem. If unable to act, for example, because of
lack of qualification in the particular field, the lawyer should
assist in finding a practitioner who is qualified and able to act.
 Code of Professional Conduct 93

Such assistance should be given willingly and, except in very

special circumstances, without charge.4

5. The lawyer may also assist in making legal services

available by participating in legal aid plans and referral services,
by engaging in programs of public information, education or
advice concerning legal matters, and by being considerate of
those who seek advice but are inexperienced in legal matters
or cannot readily explain their problems.5

6. The lawyer has a general right to decline particular

employment (except when assigned as counsel by a court) but
it is a right the lawyer should be slow to exercise if the
probable result would be to make it very difficult for a person
to obtain legal advice or representation. Generally speaking,
the lawyer should not exercise the right merely because the
person seeking legal services or that person’s cause is
unpopular or notorious, or because powerful interests or
allegations of misconduct or malfeasance are involved, or
because of the lawyer’s private opinion about the guilt of the
accused. As stated in commentary 4, the lawyer who declines
employment should assist the person to obtain the services of
another lawyer competent in the particular field and able to
act.6

7. Lawyers may offer professional services to prospective

clients by any means except means:

(a) that are false or misleading;7

(b) that amount to coercion, duress, or harassment;
(c) that take advantage of a person who is vulnerable or
who has suffered a traumatic experience and has not
yet had a chance to recover;
(d) that are intended to influence a person who has
retained another lawyer for a particular matter to
change that person’s lawyer for that matter, unless the
94 Code of Professional Conduct

change is initiated by the person or the other lawyer;8

or
(e) that otherwise bring the profession or the
administration of justice into disrepute.9

Enforcement of Restrictive Rules

8. The lawyer should adhere to rules made by the governing

body with respect to making legal services available and
respecting advertising, but rigid adherence to restrictive rules
should be enforced with discretion where the lawyer who may
have infringed such rules acted in good faith in trying to make
legal services available more efficiently, economically and
conveniently than they would otherwise have been.

1 Alta. 5-S.O.P.; ABA-MC Canon 2, EC 2-1; ABA-MR 7; B.C. 14(3); N.B. 16-R;
N.S. R-15; Ont. 3.0.1.
2 ABA-MC EC 2-6 to EC 2-8; ABA-MR 7.2; N.B. 16-C.1; N.S. R-15 Guiding
Principle; Ont. 3.01 Commentary.
3 Alta. 5-R.2, R.3; ABA-MC EC 2-9 to EC 2-14, DR 2-101(B); N.B. 16-C.3; Que.
5.02, 5.05.
4 Alta. 5-R.1; N.S. C-15.1; Ont. 3.01 Commentary.
5 ABA-MC EC 2-15, 2-16, DR 2-103; N.S. C-15.3; Ont. 3.01 Commentary.
6 Alta. 5-R.1; ABA-MC EC 2-26 to EC 2-30; N.S. 15.4; Ont. 3.01 Commentary.
7 N.B. 16-C.4(a).
8 N.B. 16-C.4(d).
9 Alta. 5-C.G.2.
 Code of Professional Conduct 95

CHAPTER XV

RESPONSIBILITY TO THE
PROFESSION GENERALLY

RULE

The lawyer should assist in maintaining the integrity of the

profession and should participate in its activities.1

Commentary

Guiding Principles

1. Unless the lawyer who tends to depart from standards of

professional conduct is checked at an early stage, loss or
damage to clients or others may ensue. Evidence of minor
breaches may, on investigation, disclose a more serious
situation or may indicate the beginning of a course of conduct
that would lead to serious breaches in the future. It is,
therefore, proper for a lawyer to report to a governing body
any occurrence involving a breach of this Code unless the
information is privileged or it would otherwise be unlawful
for the lawyer to do so. Where, however, there is a reasonable
likelihood that someone will suffer serious damage as a
consequence of an apparent breach, for example, where a
shortage of trust funds is involved, the lawyer has an
obligation to the profession to report the matter unless the
information is privileged or it is otherwise unlawful to do so.2
The lawyer also has an obligation to the profession to report to
96 Code of Professional Conduct

the governing body (unless to do so would be unlawful or

would involve a breach of privilege):

(a) a misappropriation or misapplication of trust money

or other property held in trust;3
(b) the abandonment of a law practice;
(c) participation in criminal activity related to a lawyer’s
practice;
(d) the mental instability of a lawyer of such a serious
nature that the lawyer’s clients are likely to be severely
prejudiced; and
(e) any other situation where a lawyer’s client is likely to
be severely prejudiced.4

In all cases, the report must be made bona fide and without
ulterior motive. Further, subject to local rules, the lawyer
must not act on a client’s instructions to recover from another
lawyer money or other property allegedly misappropriated by
the other lawyer unless the client authorizes disclosure to the
governing body and the lawyer makes such disclosure.

2. The lawyer has a duty to reply promptly to any

communication from the governing body.5

3. The lawyer should not in the course of a professional

practice write letters, whether to a client, another lawyer or
any other person, that are abusive, offensive or otherwise
totally inconsistent with the proper tone of a professional
communication from a lawyer.6

Participation in Professional Activities

4. In order that the profession may discharge its public

responsibility of providing independent and competent legal
services, the individual lawyer should do everything possible
to assist the profession to function properly and effectively. In
 Code of Professional Conduct 97

this regard, participation in such activities as law reform,

continuing legal education, tutorials, legal aid programs,
community legal services, professional conduct and discipline,
liaison with other professions and other activities of the
governing body or local, provincial or national associations,
although often time-consuming and without tangible reward,
is essential to the maintenance of a strong, independent and
useful profession.7

1 ABA-MC Canon 1, EC 1-4; ABA-MR 8; Alta. 3-S.O.P., 3-R.1; N.B. 19-R(a); N.S.
R-18.
2 ABA-MC EC 1-2, 1-4, DR 1-103; ABA-MR 8.3; B.C. 13(1), (2); N.B. 15-C.6;
N.S. C-18.1, 18.2; Law Society of Prince Edward Island v. Aylward [2001] L.S.D.D. No.
48.
3 B.C. 13(1)(b).
4 Alta. 3-R.4; Que. 4.02.01.
5 Alta. 3-R.3; B.C. 13(3); N.B. 19-C.1; N.S. C-18.4; Que. 4.03.02.
6 Alta. 3-R.2; N.B. 19-C.2.
7 ABA-MC EC 6-2, 8-1, 8-2, 8-9, 9-6; Alta. 3-C.G.1; N.B. 19-C.3; N.S. C-18.5;
Que. 4.04.01.
98 Code of Professional Conduct
 Code of Professional Conduct 99

CHAPTER XVI

RESPONSIBILITY TO LAWYERS
AND OTHERS

RULE

The lawyer’s conduct toward all persons with whom the

lawyer comes into contact in practice should be characterized
by courtesy and good faith.1

Commentary

Guiding Principles

1. Public interest demands that matters entrusted to the

lawyer be dealt with effectively and expeditiously.
Fair and courteous dealing on the part of each lawyer engaged
in a matter will contribute materially to this end.
The lawyer who behaves otherwise does a disservice to the
client, and neglect of the Rule will impair the ability of
lawyers to perform their function properly.2

2. Any ill feeling that may exist or be engendered between

clients, particularly during litigation, should never be allowed
to influence lawyers in their conduct and demeanour toward
each other or the parties. The presence of personal animosity
between lawyers involved in a matter may cause their
judgment to be clouded by emotional factors and hinder the
proper resolution of the matter. Personal remarks or references
100 Code of Professional Conduct

between them should be avoided. Haranguing or offensive

tactics interfere with the orderly administration of justice and
have no place in our legal system.3

3. The lawyer should accede to reasonable requests for trial

dates, adjournments, waivers of procedural formalities and
similar matters that do not prejudice the rights of the client.
The lawyer who knows that another lawyer has been
consulted in a matter should not proceed by default in the
matter without enquiry and warning.4

Avoidance of Sharp Practices

4. The lawyer should avoid sharp practice and not take

advantage of or act without fair warning upon slips,
irregularities or mistakes on the part of other lawyers not
going to the merits or involving any sacrifice of the client’s
rights. The lawyer should not, unless required by the
transaction, impose on other lawyers impossible, impractical
or manifestly unfair conditions of trust, including those with
respect to time restraints and the payment of penalty interest.5

5. The lawyer should not use a tape-recorder or other device

to record a conversation, whether with a client, another lawyer
or anyone else, even if lawful, without first informing the
other person of the intention to do so.6

6. The lawyer should answer with reasonable promptness all

professional letters and communications from other lawyers
that require an answer and should be punctual in fulfilling all
commitments.7

Undertakings

7. The lawyer should give no undertaking that cannot be

fulfilled, should fulfill every undertaking given, and should
 Code of Professional Conduct 101

scrupulously honour any trust condition once accepted.8

Undertakings and trust conditions should be written or
confirmed in writing and should be absolutely unambiguous
in their terms. If the lawyer giving an undertaking does not
intend to accept personal responsibility, this should be stated
clearly in the undertaking itself. In the absence of such a
statement, the person to whom the undertaking is given is
entitled to expect that the lawyer giving it will honour it
personally. If the lawyer is unable or unwilling to honour a
trust condition imposed by someone else, the subject of the
trust condition should be immediately returned to the person
imposing the trust condition unless its terms can be forthwith
amended in writing on a mutually agreeable basis.9

8. The lawyer should not communicate upon or attempt to

negotiate or compromise a matter directly with any party who
is represented by a lawyer except through or with the consent
of that lawyer.10

Acting Against Another Lawyer

9. The lawyer should avoid ill-considered or uninformed

criticism of the competence, conduct, advice or charges of
other lawyers, but should be prepared, when requested, to
advise and represent a client in a complaint involving another
lawyer.11

10. The same courtesy and good faith should characterize the
lawyer’s conduct toward lay persons lawfully representing
others or themselves.12

11. The lawyer who is retained by another lawyer as counsel

or adviser in a particular matter should act only as counsel or
adviser and respect the relationship between the other lawyer
and the client.13
102 Code of Professional Conduct

1 ABA-MC EC 7-36 to 7-38, DR 7-101(A)(1); ABA-MR 3.4; Alta. 3-R.1, 4-S.O.P.;

B.C. 1(4), 11; N.B. 15-R; N.S. R-13; Ont. 6.03(1); Que. 4.03.03.
2 Ont. 6.03(1) Commentary; N.S. R-13 Guiding Principle. In Ontario, The
Advocates’ Society has published Principles of Civility for Advocates as an educational
tool for the encouragement and maintenance of civility in our justice system. See
Appendix.
3 ABA-MC EC 7-37; N.S. C-13.1; Ont. 6.03(1) Commentary; M.M. Orkin, Legal
Ethics: A Study of Professional Conduct (Toronto: Cartwright & Jane, 1957) at pp.131-
32; N.B. D-4: “...it is the duty of counsel to ‘try the merits of the cause and not to
try each other’.”
4 ABA-MC EC 7-38, 7-39; Alta 4-R.4; N.B. 15-C.2(i), (iii); N.S. C-13.3; Ont.
6.03(2).
5 Alta 1-R.1; N.B. 15-C.4; N.S. C-13.2; Ont. 6.03(3).
6 Alta. 1-R.7; B.C. 11(14); N.B. 15-C.2(iv); N.S. C-13.4; Ont. 6.03(4). “[T]o build
up a client’s case on the slips of an opponent is not the duty of a professional man....
Solicitors do not do their duty to their clients by insisting upon the strict letter of
their rights. That is the sort of thing which, if permitted, brings the administration
of justice into odium,” per Middleton J. in Re Arthur and Town of Meaford (1915), 34
O.L.R. 231 at 233-34 (Ont. H.C.).
7 Alta. 1-R.5; B.C. 11(6); N.B. 15-C.2(v); N.S. C-13.5; Ont. 6.03(6).
8 Alta. 1-R.10.
9 Alta. 1-R.11; B.C. 11(7); N.B. 15-C.3; Ont. 6.03(8); N.S. C-13.6 to C-13.9.
10 ABA-MC EC 7-18; Alta. 1-R.6; B.C. 4(1.1); N.B. 15-C.2(ii); N.S. C-13.10; Ont.
6.03(7).
11 ABA-MC EC 2-28; B.C. 11(13); N.B. 15-C.5; N.S. C-13.12; Ont. 6.03(1)
Commentary.
12 N.B. 15-C.2(vii); N.S. C-13.11.
13 N.B. 15-C.2(vi); N.S. C-13.11.
 Code of Professional Conduct 103

CHAPTER XVII

PRACTICE BY
UNAUTHORIZED PERSONS

RULE

The lawyer should assist in preventing the unauthorized

practice of law.1

Commentary

Guiding Principles

1. Statutory provisions against the practice of law by

unauthorized persons are for the protection of the public.
Unauthorized persons may have technical or personal ability,
but they are immune from control, regulation and, in the case
of misconduct, from discipline by any governing body. Their
competence and integrity have not been vouched for by an
independent body representative of the legal profession.
Moreover, the client of a lawyer who is authorized to practise
has the protection and benefit of the solicitor-client privilege,
the lawyer’s duty of secrecy, the professional standards of care
that the law requires of lawyers, as well as the authority that
the courts exercise over them. Other safeguards include group
professional liability insurance, rights with respect to the
taxation of bills, rules respecting trust monies, and
requirements for the maintenance of compensation funds.2
104 Code of Professional Conduct

Suspended or Disbarred Persons

2. The lawyer should not, without the approval of the

governing body, employ in any capacity having to do with the
practice of law (a) a lawyer who is under suspension as a result
of disciplinary proceedings, or (b) a person who has been
disbarred as a lawyer or has been permitted to resign while
facing disciplinary proceedings and has not been reinstated.3

Supervision of Employees

3. The lawyer must assume complete professional

responsibility for all business entrusted to the lawyer,
maintaining direct supervision over staff and assistants such as
students, clerks and legal assistants to whom particular tasks
and functions may be delegated. The lawyer who practises
alone or operates a branch or part-time office should ensure
that all matters requiring a lawyer’s professional skill and
judgment are dealt with by a lawyer qualified to do the work
and that legal advice is not given by unauthorized persons,
whether in the lawyer’s name or otherwise. Furthermore, the
lawyer should approve the amount of any fee to be charged to
a client.4

Legal Assistants

4. There are many tasks that can be performed by a legal

assistant working under the supervision of a lawyer. It is in the
interests of the profession and the public for the delivery of
more efficient, comprehensive and better quality legal services
that the training and employment of legal assistants be
encouraged.5

5. Subject to general and specific restrictions that may be

established by local rules and practice, a legal assistant may
perform any task delegated and supervised by a lawyer so long
 Code of Professional Conduct 105

as the lawyer maintains a direct relationship with the client

and assumes full professional responsibility for the work. Legal
assistants shall not perform any of the duties that lawyers only
may perform or do things that lawyers themselves may not do.
Generally speaking, the question of what the lawyer may
delegate to a legal assistant turns on the distinction between
the special knowledge of the legal assistant and the
professional legal judgment of the lawyer, which must be
exercised whenever it is required.6

6. A legal assistant should be permitted to act only under the

supervision of a lawyer. Adequacy of supervision will depend
on the type of legal matter, including the degree of
standardization and repetitiveness of the matter as well as the
experience of the legal assistant, both generally and with
regard to the particular matter. The burden rests on the lawyer
who employs a legal assistant to educate the latter about the
duties to which the legal assistant may be assigned and also to
supervise on a continuing basis the way in which the legal
assistant carries them out so that the work of the legal assistant
will be shaped by the lawyer’s judgment.7

1 ABA-MC Canon 3, DR 3-101(A), (B); ABA-MR 5.5; B.C. 12; N.B. 19-R(b); Ont.
6.07(1); N.S. R-19.
2 ABA-MC EC 3-1, 3-3, 3-4; N.S. C-19.1; Ont. 6.07(1) Commentary. Cases and
statutes provide that certain acts amount to “the practice of law”; see, for example:
B.C.: Legal Profession Act, R.S.B.C. 1998, c. 9, s. 1(1).
Man.: Legal Profession Act, C.C.S.M. c. L-107, s. 20(3).
Nfld.: Law Society Act, S.N.L. 1999, c. L-9.1, s. 2(2).
N.S.: Barristers and Solicitors Act, R.S.N.S. 1989, c. 30, s. 5(2).
N.W.T.: Legal Profession Act, R.S.N.W.T. 1988, c. L-2, s. 1.
P.E.I.: Legal Profession Act, R.S.P.E.I., 1988, c. L-6.1, s. 1(j).
Que.: An Act respecting the Barreau du Québec, R.S.Q. c.B-1, s. 128.
The statutes of all provinces prohibit the practice of law by unauthorized persons:
Alta.: Legal Profession Act, R.S.A. 2000, c. L-8, s. 106(1).
B.C.: supra, s. 15.
Man.: supra, s. 20(2).
106 Code of Professional Conduct

Nfld.: supra, s. 76(1).

N.S.: supra, s. 5(1).
Ont.: Law Society Act, R.S.O. 1990, c. L8, s. 50(1), (2).
Que.: supra, ss. 132 et seq.
Sask.: Legal Profession Act, R.S.S., c. L-10, s. 5.
“To protect the public against persons who...set themselves up as competent to
perform services that imperatively require the training and learning of a solicitor,
although such persons are without either learning or experience to qualify them, is
an urgent public service,” per Robertson C.J.O. in Rex ex rel. Smith v. Ott (1950),
O.R. 493 at 496 (Ont. C.A.). “When a man says in effect, I am not a lawyer but I will
do the work of a lawyer for you he is offering his services as a lawyer. In offering his
services as a lawyer he is holding himself out as a lawyer even though he makes it
clear he is not a properly qualified lawyer,” per Miller C.C.J. in Regina v. Woods
(1962), O.W.N. 27 at 30.
3 N.B. 19-C.4; N.S. C-19.2; Ont. 6.07(2).
4 ABA-MC EC 3-5, 3-6; Alta. 2-R.4, 2-C.4.1; B.C. 12(1), 12(2); N.B. 19-C.5; N.S.
C-19.3 to C-19.5.
5 B.C. 12(4), 12(8).
6 B.C. 12(5), 12(5.1), 12(6); N.B. 19-C.6; N.S. C-19.6.
7 ABA-MR 5.3; B.C. 12(7); N.S. C-19.7.
 Code of Professional Conduct 107

CHAPTER XVIII

PUBLIC APPEARANCES AND PUBLIC

STATEMENTS BY LAWYERS

RULE

The lawyer who engages in public appearances and public

statements should do so in conformity with the principles of
the Code.1

Commentary

Guiding Principles

1. The lawyer who makes public appearances and public

statements should behave in the same way as when dealing
with clients, fellow practitioners and the courts. Dealings with
the media are simply an extension of the lawyer’s conduct in a
professional capacity. The fact that an appearance is outside a
courtroom or law office does not excuse conduct that would
be considered improper in those contexts.2

Public Statements Concerning Clients

2. The lawyer’s duty to the client demands that before

making a public statement concerning the client’s affairs, the
lawyer must first be satisfied that any communication is in the
best interests of the client and within the scope of the retainer.
The lawyer owes a duty to the client to be qualified to
108 Code of Professional Conduct

represent the client effectively before the public and not to

permit any personal interest or other cause to conflict with the
client’s interests.3

3. When acting as an advocate, the lawyer should refrain

from expressing personal opinions about the merits of the
client’s case.4

Standard of Conduct

4. The lawyer should, where possible, encourage public

respect for and try to improve the administration of justice. In
particular, the lawyer should treat fellow practitioners, the
courts and tribunals with respect, integrity and courtesy.
Lawyers are subject to a separate and higher standard of
conduct than that which might incur the sanction of the
court.5

5. The lawyer who makes public appearances and public

statements must comply with the requirements of
commentary 3 of the Rule in Chapter XIV relating to
advertising, solicitation and making legal services available.

Contacts with the Media

6. The media have recently shown greater interest in legal

matters than they did formerly. This is reflected in more
coverage of the passage of legislation at national and provincial
levels, as well as of cases before the courts and tribunal that
may have social, economic or political significance. This
interest has been heightened by the enactment of the Canadian
Charter of Rights and Freedoms. As a result, media reporters
regularly seek out the views not only of lawyers directly
involved in particular court and tribunal proceedings but also
of lawyers who represent special interest groups or have
recognized expertise in a given field in order to obtain
 Code of Professional Conduct 109

information or provide commentary.6

7. Where the lawyer, by reason of professional involvement

or otherwise, is able to assist the media in conveying accurate
information to the public, it is proper for the lawyer to do so,
provided that there is no infringement of the lawyer’s
obligations to the client, the profession, the courts and
tribunals or the administration of justice, and provided also
that the lawyer’s comments are made bona fide and without
malice or ulterior motive.7

8. The lawyer may make contact with the media in a non-

legal setting to publicize such things as fund-raising, expansion
of hospitals or universities, promoting public institutions or
political organizations, or speaking on behalf of organizations
that represent various racial, religious or other special interest
groups. This is a well established and completely proper role
for the lawyer to play in view of the obvious contribution it
makes to the community.8

9. The lawyer is often called upon to comment publicly on

the effectiveness of existing statutory or legal remedies, on the
effect of particular legislation or decided cases, or to offer an
opinion on causes that have been or are about to be instituted.
It is permissible to do this in order to assist the public to
understand the legal issues involved.9

10. The lawyer may also be involved as an advocate for special

interest groups whose objective is to bring about changes in
legislation, government policy or even a heightened public
awareness about certain issues, and the lawyer may properly
comment publicly about such changes.10

11. Given the variety of cases that can arise in the legal system,
whether in civil, criminal or administrative matters, it is not
feasible to set down guidelines that would anticipate every
110 Code of Professional Conduct

possible situation. In some circumstances, the lawyer should

have no contact at all with the media; in others, there may be a
positive duty to contact the media in order to serve the client
properly. The latter situation will arise more often when
dealing with administrative boards and tribunals that are
instruments of government policy and hence susceptible to
public opinion.11

12. The lawyer should bear in mind when making a public

appearance or giving a statement that ordinarily the lawyer will
have no control over any editing that may follow, or the
context in which the appearance or statement may be used.12

13. This Rule should not be construed in such a way as to

discourage constructive comment or criticism.

1 ABA-MR 3.6; N.B. 18-R; N.S. R-22.

2 N.B. 18-C.1; N.S. R-22 Guiding Principle; Ont. 6.06(1) Commentary.
3 B.C. 14(6.1); N.B. 18-C.2(a), (b); N.S. C-22.1; Ont. 6.06(1) Commentary.
4 B.C. 14(6)(a).
5 N.S. C-22.3; Que. 2.00.01.
6 N.S. C-22.5.
7 N.B. 18-C.3; N.S. C-22.6.
8 N.B. 18-C.5; N.S. C-22.7; Ont. 6.06(1) Commentary.
9 N.B. 18-C.4(a); Ont. 6.06(1) Commentary.
10 N.B. 18-C.4(b); N.S. C-22.4; Ont. 6.06(1) Commentary.
11 Ont. 6.06(1) Commentary; N.S. C-22.10.
12 N.B. 18-C.7; N.S. C-22.13; Ont. 6.06(1) Commentary.
 Code of Professional Conduct 111

CHAPTER XIX

AVOIDING QUESTIONABLE
CONDUCT

RULE

The lawyer should observe the rules of professional conduct

set out in the Code in the spirit as well as in the letter.1

Commentary

Guiding Principles

1. Public confidence in the administration of justice and the

legal profession may be eroded by irresponsible conduct on
the part of the individual lawyer. For that reason, even the
appearance of impropriety should be avoided.2

2. Our justice system is designed to try issues in an impartial

manner and decide them upon the merits. Statements or
suggestions that the lawyer could or would try to circumvent
the system should be avoided because they might bring the
lawyer, the legal profession and the administration of justice
into disrepute.3

Duty after Leaving Public Employment

3. After leaving public employment, the lawyer should not

accept employment in connection with any matter in which
112 Code of Professional Conduct

the lawyer had substantial responsibility or confidential

information prior to leaving because to do so would give the
appearance of impropriety even if none existed. However, it
would not be improper for the lawyer to act professionally in
such a matter on behalf of the particular public body or
authority by which the lawyer had formerly been employed.
As to confidential government information acquired when the
lawyer was a public officer or employee, see commentary 14 of
the Rule relating to confidential information.4

Retired Judges

4. A judge who returns to practice after retiring or resigning

from the bench should not (without the approval of the
governing body) appear as a lawyer before the court of which
the former judge was a member or before courts of inferior
jurisdiction thereto in the province where the judge exercised
judicial functions. If in a given case the former judge should
be in a preferred position by reason of having held judicial
office, the administration of justice would suffer; if the reverse
were true, the client might suffer. There may, however, be
cases where a governing body would consider that no
preference or appearance of preference would result, for
example, where the judge resigned for good reason after only a
very short time on the bench. In this paragraph “judge” refers
to one who was appointed as such under provincial legislation
or section 96 of the Constitution Act, 1867 and “courts” include
chambers and administrative boards and tribunals.5

5. Conversely, although it may be unavoidable in some

circumstances or areas, generally speaking the lawyer should
not appear before a judge if by reason of relationship or past
association, the lawyer would appear to be in a preferred
position.6
 Code of Professional Conduct 113

Inserting Retainer in Client’s Will

6. Without express instructions from the client, it is

improper for the lawyer to insert in the client’s will a clause
directing the executor to retain the lawyer’s services in the
administration of the estate.7

Duty to Meet Financial Obligations

7. The lawyer has a professional duty, quite apart from any

legal liability, to meet financial obligations incurred or
assumed in the course of practice when called upon to do so.
Examples are agency accounts, obligations to members of the
profession, fees or charges of witnesses, sheriffs, special
examiners, registrars, reporters and public officials, as well as
the deductible under a governing body’s errors and omissions
insurance policy.8

Dealings with Unrepresented Persons

8. The lawyer should not undertake to advise an

unrepresented person but should urge such a person to obtain
independent legal advice and, if the unrepresented person does
not do so, the lawyer must take care to see that such person is
not proceeding under the impression that the lawyer is
protecting such person’s interests. If the unrepresented person
requests the lawyer to advise or act in the matter, the lawyer
should be governed by the considerations outlined in the Rule
relating to impartiality and conflict of interest between clients.
The lawyer may have an obligation to a person whom the
lawyer does not represent, whether or not such person is
represented by a lawyer.9

Bail

9. The lawyer shall not stand bail for an accused person for
114 Code of Professional Conduct

whom the lawyer or a partner or associate is acting, except

where there is a family relationship with the accused, in which
case the person should not be represented by the lawyer but
may be represented by a partner or associate.

Standard of Conduct

10. The lawyer should try at all times to observe a standard of

conduct that reflects credit on the legal profession and the
administration of justice generally and inspires the confidence,
respect and trust of both clients and the community.10

1 ABA-MC Canon 9; ABA-MR 8.4; Alta. 1-R.1; N.B. 23-R(a); N.S. R-23; Que.
1.00.01. Cf. dictum of Hewart L.C.J. in The King v. Sussex Justices (1924), 1 K.B. 256
at 259 (K.B.D.): “[It] is of fundamental importance that justice should not only be
done, but should manifestly and undoubtedly be seen to be done.”
2 ABA-MC EC 9-1, DR 9-101; N.B. 23-C.1; N.S. C-23.1.
3 ABA-MC EC 9-4; N.B. 23-C.2; N.S. C-23.2.
4 ABA-MC EC 9-3, DR 9-101(B); N.S. C-16.10.
5 Ont. 6.08(4); N.S. C-16.11.
6 Alta. 10-R.9.
7 N.S. C-7.3.
8 Alta. 8-R.2, R.3; B.C. 2(2); N.B. 23-C.4; Ont. 6.01(2); N.S. C-18.7.
9 ABA-MR 4.3; Alta. 11-R.5; B.C. 4(1); Ont. 2.04(14); N.S. C-4.20.
10 Alta. 15-R.2.
 Code of Professional Conduct 115

CHAPTER XX

NON-DISCRIMINATION

RULE

The lawyer shall respect the requirements of human rights

and constitutional laws in force in Canada, and in its provinces
and territories. Except where differential treatment is
permitted by law, the lawyer shall not discriminate with
respect to partnership or professional employment of other
lawyers, articled students or any other person, or in
professional dealings with other members of the profession or
any other person on grounds including, but not limited to, an
individual’s ancestry, colour, perceived race, nationality,
national origin, ethnic background or origin, language,
religion, creed or religious belief, religious association or
activities, age, sex, gender, physical characteristics, pregnancy,
sexual orientation, marital or family status, source of income,
political belief, association or activity, or physical or mental
disability.1

Commentary

Duty of Non-Discrimination

1. The lawyer has a duty to respect the dignity and worth of

all persons and to treat persons equally, without
discrimination. Discrimination is defined as any distinction
that disproportionately and negatively impacts on an individual
116 Code of Professional Conduct

or group identifiable by the grounds listed in the Rule, in a

way that it does not impact on others. This duty includes, but
is not limited to:

(a) the requirement that the lawyer does not deny

services or provide inferior services on the basis of the
grounds noted in the Rule;2
(b) the requirement that the lawyer not discriminate
against another lawyer in any professional dealings;
(c) the requirement that the lawyer act in accordance
with the legal duty to accommodate and not engage in
discriminatory employment practices; and
(d) the requirement that the lawyer prohibit partners, co-
workers and employees and agents subject to the
lawyer’s direction and control from engaging in
discriminatory practices.3

Extent of Duty of Non-Discrimination

2. Failure by the lawyer to take reasonable steps to prevent or

stop discrimination by the lawyer’s partner, co-worker or by
any employee or agent also violates the duty of non-
discrimination.

Special Programs

3. Discrimination does not include special programs

designed to relieve disadvantage for individuals or groups on
the grounds noted in the Rule.4

Responsibility

4. Discriminatory attitudes on the part of partners,

employees, agents or clients do not diminish the responsibility
of the lawyer to refrain from discrimination in the provision
of service or employment.
 Code of Professional Conduct 117

Discrimination in Employment

5. The Rule applies to discrimination by lawyers in any

aspect of employment and working conditions, including
recruitment, hiring, promotion, training, allocation of work,
compensation, benefits, dismissal, lay-offs, discipline,
performance appraisal, and hours of work.5

It applies to all discrimination with repercussions for

employment and workplace conditions, including physical
work sites, washrooms, conferences, business travel and social
events. Examples of discrimination in employment include:

(a) setting unnecessary or unfair hiring criteria that tend

to exclude applicants on prohibited grounds;
(b) asking questions during an employment or promotion
interview that are not logically related to the essential
requirements of the job;
(c) assigning work on the basis of factors or assumptions
other than individual ability or denying work to
lawyers on the basis of prohibited grounds;
(d) failing to provide appropriate maternity and parental
leave thereby discriminating on the basis of sex or
family status;
(e) failing to accommodate religious holidays or religious
practices thereby discriminating on the basis of
religion;
(f) requiring billable hour targets or workload
expectations which effectively exclude those who have
child care responsibilities and adversely affect such
persons on the basis of family status or sex.

It is not considered discrimination when distinctions are made

as a result of a reasonable and bona fide occupational
qualification or requirement.6 For example, if an applicant for
a position is not sufficiently proficient in the language(s)
118 Code of Professional Conduct

required for the competent performance of the essential duties

and responsibilities required in that position, it would not
constitute discrimination to deny the applicant employment
solely on the ground of language. Where facility in a particular
language is clearly an essential requirement for the position,
the employer is not prevented from demanding the necessary
proficiency.

Duty of Accommodation

6. One aspect of the duty of non-discrimination is the duty

to accommodate the diverse needs of lawyers on the basis of
grounds noted in the Rule. Such accommodation is required
unless it would cause undue hardship to the lawyer. Examples
of this type of accommodation include:

(a) the provision of flexible hours to accommodate family

responsibilities or to accommodate transportation
difficulties for persons with disabilities;
(b) the modification of the physical workplace to include
wheelchair access, modified furniture and assistive
devices;
(c) a benefits policy that includes same sex couples;
(d) adjusting the billable hour or workload expectations
to accommodate family responsibilities;
(e) accommodation of religious holidays or religious
practices.

Sexual Harassment and Harassment

7. Sexual harassment and harassment are forms of

discrimination. Harassment includes any improper, abusive or
unwelcome conduct that offends, embarrasses, humiliates, or
degrades another person. The lawyer should in all areas of
professional conduct refrain from engaging in vexatious
comments or conduct that is known or reasonably ought to be
 Code of Professional Conduct 119

known to constitute sexual harassment or harassment.7

(a) Sexual harassment includes the use of a position of

power to import sexual requirements into the
workplace thereby negatively altering the working
conditions of employees. Types of behaviour that
constitute sexual harassment include, but are not
limited to:

(i) making sexist jokes causing embarrassment or

offence, or that are by their nature clearly
embarrassing or offensive;
(ii) leering;
(iii) displaying sexually offensive material;
(iv) using sexually degrading words to describe a
person;
(v) making derogatory or degrading remarks
directed towards members of one sex or one’s
sexual orientation;
(vi) making sexually suggestive or obscene comments
or gestures;
(vii) making unwelcome inquiries or comments about
a person’s sex life;
(viii) making unwelcome sexual flirtations, advances,
or propositions;
(ix) engaging in persistent unwanted contact or
attention after the end of a consensual
relationship;
(x) requests for sexual favours;
(xi) unwanted touching;
(xii) verbal abuse or threats; and
(xiii) sexual assault.

(a) Sexual harassment can occur in the form of behaviour

by a man towards a woman, between men, between
women, or by a woman towards a man.8
120 Code of Professional Conduct

(b) Harassment includes all conduct that erodes the

dignity and equality of opportunity of the victim,
particularly based on any of the grounds noted in the
Rule. Types of behaviour that constitute harassment
include, but are not limited to:

(i) unwelcome remarks, jokes, comments, slurs,

innuendoes or taunting about a person’s body,
attire, ancestry, colour, perceived race, nationality,
national origin, ethnic background or origin,
language, religion, creed or religious belief,
religious association or activities, age, sex, gender,
physical characteristics, pregnancy, sexual
orientation, marital or family status, source of
income, political belief, association or activity,
physical or mental disability, or on other grounds;
(ii) displaying or distributing racist, pornographic and
other offensive material, calendars, posters,
cartoons or drawings;
(iii) practical jokes based on race, sex, or other
prohibited grounds;
(iv) unwelcome invitations or requests, particularly
based on intimidation;
(v) verbal abuse or threats;
(vi) inappropriate or offensive gestures;
(vii) physical assault;
(viii) name calling; and
(ix) condescension which undermines self-respect.

Discriminatory Activities

8. The lawyer must refrain from participating in

discriminatory activities in his or her professional life.
 Code of Professional Conduct 121

1 ABA-MR 8.4; Alta. 1-R.8, C.8; B.C. 2(3); N.B. 21-R; N.S. R-24; Ont. 5.04(1).
2 N.S. C-24.1.
3 N.B. 21-C.1.
4 B.C. 2(6); N.B. 21-C.3(c); N.S. C-24.6.
5 Alta. 1-C.8; N.B. 21-C.2(a); N.S. C-24.2; Ont. 5.04(3).
6 N.B. 21-C.3(a)(i); N.S. C-24.4(a).
7 Alta. 1-R.9, C.9; B.C. 2(5); N.B. 22-C.1, C.2(a); Ont. 5.03(1); Que. 4.02.01(y).
8 N.B. 22-C.2(c); Ont. 5.03(1) Commentary.
122 Code of Professional Conduct
 Code of Professional Conduct 123

CHAPTER XXI

THE LAWYER AS MEDIATOR

RULE

1. A lawyer who acts as a mediator shall, at the outset of the

mediation, ensure that the parties to it understand fully that:

(a) the lawyer is not acting as a lawyer for either party but,
as mediator, is acting to assist the parties to resolve the
matters in issue, and
(b) although communications pertaining to and arising out
of the mediation process may be covered by some
other common law, civil law principles, statutory or
other privilege or rule, they will not be covered by the
solicitor-client privilege.1

2. A lawyer shall not act as a mediator if the lawyer or the

lawyer’s firm has acted or is acting in a matter that may
reasonably be expected to become an issue during the
mediation, except with the informed consent of all parties.2

Commentary

1. Generally, lawyers who serve as mediators are governed by

the provisions of this Code except to the extent that those
provisions are varied by this Chapter.3

2. Generally, lawyers who serve as mediators should suggest

124 Code of Professional Conduct

and encourage the parties to seek the advice of separate

counsel before and during the mediation process if they have
not already done so. Where a lawyer who serves as a mediator
prepares a draft contract for the consideration by the parties,
the lawyer should advise and encourage them to seek separate
independent legal representation concerning the draft.

1 ABA-MC EC 5-20; Alta. 6-C.1.2; N.B. 13-C.2; Ont. 4.0.7.

2 Ont. 4.07 Commentary.
3 Alta. 15-C.G.2; Ont. 4.07 Commentary.
 Code of Professional Conduct 125

CHAPTER XXII

INDEPENDENCE OF THE BAR

RULE

1. The lawyer must exercise independent professional

judgment in providing legal advice, services and representation
to a client.1

2. The lawyer must conduct himself or herself in a manner

that respects, protects and advances the independence of the
bar.

Commentary

1. Independence is one of the foundational values of the legal

profession. A lawyer must exercise independent judgment and
at all times act in the best interests of the client. Many of the
professional duties set forth in other chapters of this Code
may be seen as aspects of the independence of the bar,
including the duty to discharge all duties owed to clients and
others with integrity (Chapter I), the duty to be both honest
and candid when advising clients (Chapter III), the duty to
hold in strict confidence all information concerning the
business and affairs of the client acquired in the course of the
professional relationship (Chapter IV), the duty not to act or
to continue to act in a matter when there is or is likely to be a
conflicting interest (Chapter V), the duty not to act for a client
where the lawyer’s duty to the client and the personal interests
of the lawyer are in conflict (Chapter VI), and the duty to
126 Code of Professional Conduct

represent the client resolutely and fearlessly (Chapter IX).

2. In the legal profession the right of self-governance is at the

heart of the independence of the bar. The importance of the
legal profession remaining independent from government
control was emphasized in a unanimous 1982 judgment of the
Supreme Court of Canada:

The independence of the bar from the State in all its pervasive
manifestations is one of the hallmarks of a free society.
Consequently, regulation of these members of the law profession by
the State must, so far as by human ingenuity it can be so designed,
be free from State interference, in the political sense, with the
delivery of services to the individual citizens in the State,
particularly in fields of public and criminal law. The public
interest in a free society knows no area more sensitive than the
independence, impartiality and availability to the general public of
the members of the bar and through those members, legal advice
and services generally.2

3. Although, as suggested by the Supreme Court of Canada

in the case quoted in paragraph 2 of this commentary, the
independence of the bar may be of particular importance in
the fields of public and criminal law, it is important in every
area of practice that the client is confident that all advice and
representation provided by the lawyer is not influenced by any
government ties. The legal profession has a unique position
in the community. Its distinguishing feature is that it alone
among the professions is concerned with protecting the
person, property, and rights of citizens from whatever quarter
they may be threatened and pre-eminently against the threat
of encroachment by the State. It is the responsibility of
lawyers to protect clients’ rights, and in order that they may
continue to do so there can be no compromise in the principle
of freedom of the profession from interference, let alone
control, by government.
 Code of Professional Conduct 127

1 ABA-MC Canon 5, EC 5-1; Alta. 9-R.3; Que. 3.06.05.

2 Canada (Attorney General) v. Law Society (British Columbia), [1982] 2 S.C.R. 307.
128 Code of Professional Conduct
 Code of Professional Conduct 129

APPENDIX - PRINCIPLES OF CIVILITY

FOR ADVOCATES

PREAMBLE

Civility amongst those entrusted with the administration of

justice is central to its effectiveness and to the public’s
confidence in that system. Civility ensures matters before the
Court are resolved in an orderly way and helps preserve the
role of Counsel in the justice system as an honourable one.

Litigation, however, whether before a Court or tribunal is not

a “tea party”. Counsel are bound to vigorously advance their
client’s case, fairly and honourably. Accordingly, Counsel’s role
is openly and necessarily partisan and nothing which follows is
intended to undermine those principles. But Counsel can
disagree, even vigorously, without being disagreeable. Whether
among Counsel or before the Courts, antagonistic or
acrimonious behaviour is not conducive to effective advocacy.
Rather, civility is the hallmark of our best Counsel.

Although couched in terms of proceedings before the Courts,

the principles which follow are, with necessary adjustments,
applicable to all forms of dispute resolution proceedings,
including administrative bodies, arbitrators and mediators.
These principles are not intended as a code of professional
conduct subject to enforcement by discipline or other sanction
but as an educational tool for the encouragement and
maintenance of civility in our justice system.

PART I - RELATIONS WITH OPPOSING COUNSEL

General Guidelines for Relations with Opposing Counsel

1. Counsel should always be courteous and civil to Counsel

engaged on the other side of the lawsuit or dispute. It is the
130 Code of Professional Conduct

responsibility of Counsel to require those under their

supervision to conduct themselves with courtesy and civility as
well.

2. Ill feelings that may exist between clients, particularly

during litigation, should not influence Counsel in their
conduct and demeanour toward opposing Counsel.

3. Counsel should always be honest and truthful with

opposing Counsel.

4. Counsel should conduct themselves similarly towards lay

persons lawfully representing themselves or others.

Cooperating with Opposing Counsel

5. Counsel should avoid unnecessary motion practice or

other judicial intervention by negotiating and agreeing with
opposing Counsel whenever practicable.

6. When Counsel is about to send written or electronic

communication, or take a fresh step in a proceeding which
may reasonably be unexpected, Counsel ought to provide
opposing Counsel with some advance notice where to do so
does not compromise a client’s interests.

Communications with Opposing Counsel

7. Counsel should respond promptly to correspondence and

communications, including electronic communications, from
opposing Counsel.

Promises, Agreements, Undertakings and Trust Conditions

Given to Opposing Counsel

8. Counsel should fulfill or comply with all promises to, or

 Code of Professional Conduct 131

agreements with, opposing Counsel, whether oral or in

writing.

9. Counsel should not give any undertaking that, to

Counsel’s knowledge or belief, cannot be fulfilled and should
fulfill every undertaking given. Undertakings should be
confirmed in writing and should be unambiguous in their
terms. Undertakings should also be fulfilled as promptly as
circumstances permit.

10. If Counsel giving an undertaking does not intend to accept

personal responsibility, this should be stated clearly in the
undertaking itself. In the absence of such a statement, the
person to whom the undertaking is given is entitled to expect
that Counsel will honour it personally.

Cooperating with Opposing Counsel on Scheduling Matters

11. Counsel should consult opposing Counsel regarding

scheduling matters in a genuine effort to avoid conflicts.

12. In doing so, Counsel should attempt to accommodate the

calendar conflicts of opposing Counsel previously scheduled
in good faith for hearings, examinations, meetings,
conferences, vacations, seminars or other functions.

13. Counsel should agree to reasonable requests for

scheduling changes, such as extensions of time, provided the
client’s legitimate interests will not be materially and adversely
affected.

14. Counsel should not attach unfair or extraneous conditions

to extensions of time. However, Counsel is entitled to impose
conditions appropriate to preserve rights that an extension
might otherwise jeopardize. Counsel may also request
reciprocal scheduling concessions but should not unreasonably
132 Code of Professional Conduct

insist on them.

15. Counsel should promptly notify opposing Counsel when

hearings, examinations, meetings or conferences are to be
cancelled or postponed.

Agreement on Draft Orders

16. When a draft order is to be prepared to reflect a Court

ruling, Counsel should draft an order that accurately and
completely reflects the Court’s ruling. Counsel should
promptly prepare and submit a proposed order to opposing
Counsel and attempt to reconcile any differences before the
draft order is presented to the Court.

Conduct Which Undermines Cooperation Among Counsel

17. Counsel should avoid sharp practice. Counsel should not

take advantage of, or act without fair warning to opposing
Counsel, upon slips, irregularities, mistakes or inadvertence.

18. Counsel should not falsely hold out the possibility of

settlement as a means of adjourning a discovery or delaying a
trial.

19. Subject to the Rules of Practice, Counsel should not cause

any default or dismissal to be entered without first notifying
opposing Counsel, assuming the identity of opposing Counsel
is known.

20. Counsel should not record conversations with opposing

Counsel without consent of all persons involved in the
conversation.
 Code of Professional Conduct 133

Conduct at Examinations for Discovery

21. Counsel, during examination for discovery, should at all

times conduct themselves as if a Judge were present. This
includes avoiding inappropriate objections to questions,
discourteous exchanges among Counsel and excessive
interruptions to the examination process.

22. Counsel should not ask repetitive or argumentative

questions or engage in making excessive or inappropriate self-
serving statements during examination for discovery.

23. The witness who is being examined should be treated with

appropriate respect and should not be exposed to discourteous
comments by opposing Counsel or their clients.

24. Counsel should instruct their witnesses as to the

appropriate conduct on examination and the requirement for
courtesy and civility to opposing Counsel and their clients.

25. Counsel should not engage in examinations for discovery

that are not necessary to elicit facts or preserve testimony but
rather have as their purpose the imposition of a financial
burden on the opposite party.

Comments Made About Opposing Counsel

26. Counsel should avoid ill-considered or uninformed

criticism of the competence, conduct, advice, appearance or
charges of other Counsel. However, Counsel should be
prepared, when requested, to advise and represent a client in a
complaint involving other Counsel.

27. Counsel should not attribute bad motives or improper

conduct to opposing Counsel, except when relevant to the
issues of the case and well-founded. If such improper conduct
134 Code of Professional Conduct

amounts to a violation of applicable disciplinary rules,

however, Counsel should report such conduct to the
appropriate professional disciplinary authority.

28. Counsel should avoid disparaging personal remarks or

acrimony toward opposing Counsel.

29. Counsel should not ascribe a position to opposing

Counsel that he or she has not taken, or otherwise seek to
create an unjustified inference based on opposing Counsel’s
statements or conduct.

Accommodating Requests from Opposing Counsel

30. Counsel, and not the client, has the sole discretion to
determine the accommodations to be granted to opposing
Counsel in all matters not directly affecting the merits of the
cause or prejudicing the client’s rights. This includes, but is
not limited to, reasonable requests for extensions of time,
adjournments, and admissions of facts. Counsel should not
accede to the client’s demands that he or she act in a
discourteous or uncooperative manner toward opposing
Counsel.

31. Counsel should abstain from obstructing any examination

or court process.

32. Subject to applicable practice rules, Counsel should give

opposing Counsel, on reasonable request, an opportunity in
advance to inspect all evidence or all non-impeaching
evidence.
 Code of Professional Conduct 135

PART II - COMMUNICATIONS WITH OTHERS

Communications with Other Parties and Witnesses

33. Counsel should not communicate upon, attempt to

negotiate or compromise a matter directly with any party who
is represented by Counsel except through or with the consent
of that Counsel.

34. Counsel may tell any witness that he or she does not have
any duty to submit to an interview or to answer questions
posed by opposing Counsel, unless required to do so by
judicial or legal practice.

Communications with the Judiciary Outside of Court

35. As a general principle, unless specifically provided in the

Rules of Practice, a Practice Direction or a Notice to the
Profession, Counsel should not communicate directly with a
Judge out of Court about a pending case, unless invited or
instructed to do so by the Court.

36. Counsel should not contact a Judge in regard to

administrative matters, unless otherwise invited or instructed
by the Judge. Requests to schedule urgent matters should be
made through the court office to the scheduling co-ordinator
or an administrative Judge. Other matters such as
management, scheduling etc. should be arranged through the
Judge’s secretary.

37. Prior to a hearing, when dealing with process and

procedure, Counsel who wish to communicate with a
Judge should do so through the Judge’s secretary and advise
whether opposing Counsel has been notified and whether
consent to the communication has been obtained. The Judge
will then determine the appropriate manner of receiving the
136 Code of Professional Conduct

communication and advise Counsel.

38. Counsel should not contact a presiding Judge about the

case during the course of a hearing unless invited to do so.

39. Unless invited or permitted by the judiciary,

correspondence, e-mail or voicemail between Counsel should
not be copied to the Court.

40. Telephone conferences that include a Judge are Court

proceedings and, while less formal, are subject to the same
principles of civility as any other Court proceeding.

PART III - TRIAL CONDUCT

Trial Preparation

41. Counsel should not attempt to handle a trial or matter that

he or she is not by experience or training competent to do.
Nor should Counsel attempt to handle a trial or matter
without preparation appropriate to the circumstances.

42. Counsel should cooperate with other Counsel in the

timely preparation of a trial brief of documents to facilitate the
management of documentary evidence at trial by the Court,
witnesses and Counsel.

43. Counsel should cooperate in the timely exchange with

opposing Counsel of any required witness lists and witness
‘will-say’ statements.

44. If adjournment is sought, Counsel should provide as

much notice as possible to the Court and other Counsel,
together with the reason the adjournment is requested.

45. Counsel should avoid hostile and intemperate

communication among Counsel at all times, particularly close
 Code of Professional Conduct 137

to trial when stress levels are high. Such communication will

only deteriorate further during the trial and adversely affect
the administration of justice in the case.

During Trial

46. Counsel should introduce themselves to the court staff at

the opening of trial, if not already known to them. The court
staff should be treated with appropriate courtesy and respect at
all times.

47. During trial, Counsel should not allude to any fact or

matter which is not relevant or with respect to which no
admissible evidence will be advanced.

48. Counsel should not engage in acrimonious exchanges with

opposing Counsel or otherwise engage in undignified or
discourteous conduct that is degrading to their profession and
to the Court.

49. During trial, Counsel should not make any accusation of

impropriety against opposing Counsel unless such accusation
is well-founded and without first giving reasonable notice so
that opposing Counsel has an adequate opportunity to
respond.

50. Objections, requests and observations during trial should

always be addressed to the Court, not to other
Counsel.

51. Objections during trial are properly made as follows:

(1) Counsel rises and calmly states “Your Honour, I have

an objection”;

(2) When Counsel rises to make an objection or to address

138 Code of Professional Conduct

the Judge, other Counsel should be seated until the

Judge asks for a response. Under no circumstances
should two or more Counsel be addressing the Court
at the same time;

(3) The basis for the objection should be briefly and

clearly stated. Following a clear statement of the
objection, Counsel should present argument in
support of it and then sit down;

(4) Counsel opposing the objection shall in turn, or as

directed by the Judge, rise and clearly state their
position. They will then make their argument, if any,
in support and sit down; and

(5) Usually, Counsel who made the objection will then be

given an opportunity to reply. The reply should
address only those points raised by opposing Counsel
and avoid repetitious re-argument of the issues.

52. When the Court has made a ruling on a matter, Counsel

should in no way attempt to re-argue the point or attempt to
circumvent the effect of the ruling by other means.

53. In the absence of a jury, a question to a witness by

Counsel should not be interrupted before the question is
completed for the purposes of objection or otherwise, unless
the question is patently inappropriate.

54. Counsel should never attempt to get before the Court

evidence which is improper. If Counsel intends to lead
evidence about which there may be some question of
admissibility, then Counsel should alert opposing Counsel and
the Court of that intention.

55. When addressed by the Judge in the courtroom, Counsel

 Code of Professional Conduct 139

should rise. When one Counsel is speaking the other(s) should

sit down until called upon. Counsel should never remain with
his or her back turned when the Judge is speaking.

56. Counsel cannot condone the use of perjured evidence and,

if Counsel becomes aware of perjury at any time, they must
immediately seek the client’s consent to bring it to the
attention of the Court. Failing that, the Counsel must
withdraw. Nothing is more antithetical to the role of Counsel
than to advance the client’s case before the Court, directly or
indirectly, on the basis of perjured evidence.

57. Counsel, or any member of their firm, should not give

evidence relating to any contentious issue in a trial.

58. In trials where they are acting as Counsel, Counsel should

not take part in any demonstrations or experiments in which
their own person is involved except to illustrate what has
already been admitted in evidence.

59. Counsel should be considerate of time constraints which

they have agreed to or which have been imposed by the Court.

60. Counsel should not communicate with a Judge following

a hearing and during deliberation unless specifically invited or
directed to do so. A request for consideration of additional
factual or legal material should be brought by motion on
notice to opposing Counsel.

Any additional legal authority may occasionally be brought to

the attention of the Judge and opposing Counsel at the same
time but without further comment by Counsel.

If there is a request to make further submissions, the Judge

will determine whether further submissions are justified.
140 Code of Professional Conduct

61. If you are successful in the case, shake the hand of your
opponent if it is offered. Offer yours if it is not. If you lose the
case, don’t whine. However painful, offer your hand to your
successful opponent. If the case is reserved and you have lost,
call your opponent with your compliments.

PART IV - COUNSEL’S RELATIONS WITH THE

JUDICIARY

What Judges Can Expect from Counsel

62. Judges are entitled to expect Counsel will treat the Court
with candour, fairness and courtesy.

63. Judges are entitled to expect that Counsel appearing are by

training and experience competent to handle the matter before
the Court.

64. Notwithstanding that the parties are engaged in an

adversarial process, Judges are entitled to expect that Counsel
will assist the Court in doing justice to the case.

65. Judges are entitled to expect Counsel to assist in

maintaining the dignity and decorum of the court room and
their profession and avoid disorder and disruption.

66. Judges are entitled to expect Counsel to be punctual,

appropriately attired and adequately prepared in all matters
before the Courts.

67. Judges may expect Counsel to properly instruct their

clients as to behaviour in the court room, and any court
related proceedings. Counsel are expected to take what steps
are necessary to dissuade clients and witnesses from causing
disorder or disruption in the court room.
 Code of Professional Conduct 141

68. Judges are entitled to expect that Counsel, in their public

statements, will not engage in personal attacks on the judiciary
or unfairly criticize judicial decisions.

What Counsel Are Entitled to Expect of the Judiciary

69. Counsel are entitled to expect Judges to treat everyone

before the courts with appropriate courtesy.

70. Counsel are entitled to expect that Judges understand that

while settlement is always desirable, there are some cases that
require judicial resolution, and that in balancing interests,
neither Counsel nor the parties should be unduly urged to
settle in such cases.

71. Counsel are entitled to expect Judges to maintain firm

control of Court proceedings and ensure that they are
conducted in an orderly, efficient and civil manner by Counsel
and others engaged in the process.

72. Counsel are entitled to expect that Judges will not engage
in unjustified reprimands of Counsel, insulting and improper
remarks about litigants and witnesses, statements evidencing
pre-judgment and intemperate and impatient behaviour.

73. Counsel are entitled to expect Judges, to the extent

consistent with the efficient conduct of litigation and other
demands on the Court, to be considerate of the schedules of
Counsel, parties and witnesses when scheduling hearings,
meetings or conferences.

74. Counsel are entitled to expect Judges to be punctual in

convening all trials, hearings, meetings and conferences. If
Judges are delayed, they should notify Counsel when possible.

75. Counsel are entitled to expect Judges to endeavour to

142 Code of Professional Conduct

perform all judicial duties, including the delivery of reserved

judgments, with reasonable promptness.

76. Counsel are entitled to expect Judges to use their best

efforts to ensure that court personnel under their direction act
civilly towards Counsel, parties and witnesses.
 Code of Professional Conduct 143

ABBREVIATIONS

Short-form reference to Codes of Conduct are as follows:

Alta Code of Professional Conduct of the Law Society of

Alberta, November 2002. The Code is divided
into Statement of Principle (S.O.P.), Rules, and
Commentary.
ABA-MC Model Code of Professional Responsibility of the
American Bar Association (Chicago), adopted
with effect from January 1, 1970, last amended in
August 1980. The ABA-MC is divided into
Canons, Ethical Considerations (ECs) and
Disciplinary Rules (DRs).
ABA-MR Model Rules of Professional Conduct of the American
Bar Association, adopted August 2, 1983, last
amended in 2003.
B.C. Professional Conduct Handbook of the Law Society
of British Columbia (Vancouver), last amended
May 11, 2004.
N.B. Code of Professional Conduct of the Law Society of
New Brunswick, adopted with effect from
January 1, 2004.
N.S. Legal Ethics and Professional Conduct Handbook of
the Nova Scotia Barristers’ Society (Halifax),
1990.
Ont. Rules of Professional Conduct of the Law Society of
Upper Canada (Toronto), adopted with effect
from November 1, 2000, last amended June 28,
2002.
Que. Code of Ethics of Advocates, R.R.Q., 1981, c. B-1,
r.1, under An Act Respecting the Barreau du Québec.
R.S.Q., c. B-1 and the Professional Code, R.S.Q., c.
C-26.
144 Code of Professional Conduct
 Code of Professional Conduct 145

BIBLIOGRAPHY

The following is a selected bibliography of texts and other

sources helpful to those concerned with matters addressed in
this Code:

Bennion, F.A.R., Professional Ethics, The Consultation

Professions and Their Code (London: Chas. Knight, 1969).

Casey, James T., The Regulation of Professions in Canada

(Toronto: Carswell/Thomson, 1994).

Goulet, Mario, Le droit disciplinaire des corporations professionnelles

(Cowansville, Québec, Éditions Yvons Blais, 1993).

Hazard, Geoffrey C. Legal Ethics: A Comparative Study

(Stanford: Stanford University Press, 2004).

Hutchinson, Allan C., Legal Ethics and Professional Responsibility

(Toronto: Irwin Law, 1999).

Lundy, Derek, Gavin MacKenzie & Mary V. Newbury,

Barristers & Solicitors in Practice (Markham, Ontario:
Butterworths, 1998).

MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility

and Discipline, 3d ed. (Toronto: Carswell/Thomson, 2001).

Orkin, M.M., Legal Ethics: A Study of Professional Conduct

(Toronto: Cartwright & Jane, 1957).

Perell, Paul, Conflicts of Interest in the Legal Profession (Markham,

Ontario: Butterworths, 1995).

Poirier, Sylvie, La discipline professionnelle au Québec, principes

législatifs, jurisprudentiels et aspects pratiques (Cowansville,
Québec, Éditions Yvon Blais, 1998).
146 Code of Professional Conduct

Proulx, Michel & David Layton, Ethics and Canadian Criminal

Law (Toronto: Irwin Law, 2001).

Service de la formation permanenet, Barreau du Québec,

Développements récents en déontologie, droit professionnel et
disciplinaire (Cowansville, Québec, Éditions Yvon Blais,
publication annuelle).

Smith, Beverly G., Professional Conduct for Lawyers and Judges

(Fredericton, N.B.: Maritime Law Book, 1998).

Wolfram, Charles, Modern Legal Ethics (St. Paul, Minn.:

West, 1986).
 Code of Professional Conduct 147

INDEX

Abandoning: see Withdrawal

Abbreviations, 143
Abuse
of criminal law for civil ends (III-9), 13
of any person, tribunals (IX-16), 64
of process (IX-2(a)), 57
of witnesses (IX-2(k)), 59
Accessibility: see Legal services
Accounting for monies, property (VIII-R, VIII-1), 53
Accounts
interest on (XI-4), 77
see also Fees
Administrative proceedings: see Tribunals
Admissions by accused: see Confessions
Adversary proceedings
role for advocates in (IX-17), 65
Advertising (XIV-1, XIV-2), 91-92
Advising clients (III-R), 11
candid and honest advice (III-R, III-1), 11
criminal prosecution, impropriety of use for civil
advantage (III-9), 13
errors and omissions (III-11), 13
independent advice (III-12), 14
indicating basis of advice (III-3), 11
non-legal matters (III-10), 13
overconfident assurances (III-4), 12
scope of advice (III-1, III-2, III-3, III-4), 11-12
second opinion (III-5), 12
Advocate: see Lawyer as advocate
Affidavits (IX-5), 59
Alternative dispute resolution (IX-8), 61
Arbitration
between clients (V-9), 28
148 Code of Professional Conduct

Associates
as witnesses (IX-5), 59
conflict of interest and (VI-3, X-2), 46, 71
harassment (XX-7), 118
non-discrimination (XX-1(d), XX-4), 116
of public office holders (X-2, X-5), 71, 72
sexual harassment (XX-7), 118
Availability: see Legal services

Bail (XIX-9), 113

Business interests
with clients (VI-R, VI-2, VI-5, VI-6), 45-46, 47-48
with judiciary (IX-2(c)), 58

Clients
advice to: see Advising clients
arbitration between (V-9), 28
business transactions with (VI-R, VI-2, VI-5, VI-6), 45-46,
47-48
debtor-creditor relationships with (VI-4), 47
definition (Interpretation, V-13, VI-6), xiii, 29, 47
dishonesty or fraud by (III-7), 12
duty of secrecy toward (IV-4), 19
harassment (XX-7), 18
joint ventures with (VI-5), 19
public statements concerning (XVIII-2, XVIII-3), 77
right to terminate relationship with lawyer (XII-1), 53
sexual harassment (XX-7), 118
Clients’ property (VIII-R), 107
confidentiality (VIII-5), 108
definition (VIII-1), 53
delivery in the event of withdrawal (XII-8), 83
identification of (VIII-3), 54
notification of receipt (VIII-2), 54
privilege (VIII-6), 54
record keeping (VIII-4), 54
 Code of Professional Conduct 149

Competence (II-R-1, II-1, II-4), 5, 6

consequences of incompetence (II-9, II-10), 8-9
knowledge and skill (II-1, II-2, II-3, II-4, II-5), 5-6
outside interests impairing (VII-R, VII-3), 49, 50
seeking assistance (II-6), 6
withdrawal where lacking (XII-4), 82
Compromise: see Settlement
Confessions (IX-11), 62
Confidential information (IV-R), 17
disclosure (IV), 17
discussion of clients’ affairs (IV-8), 20
duty of secrecy toward clients (IV-4), 19
ethical rule (IV-2, IV-10), 18, 20
in public office (X-7), 73
multiple clients (IV-6), 19
need for full and unreserved communication (IV-1), 18
prohibitions on use of (IV-5, IV-6, IV-7, IV-8), 19-20
public safety exception (IV-2), 18
re clients’ property (VIII-5), 54
treatment in the event of withdrawal (XII-9), 84
whistleblowing (IV-12), 21
see also Disclosures
Conflicts of interest (V-R), 25
between clients (V-R), 25
between lawyer and client (VI-R, VII-4, VII-6), 25, 50, 51
burden of proof in disciplinary proceedings (V-19), 31
compliance (V-27), 34
confidential government information (V-18), 31
definition (V-1, V-3), 25
disclosure of (V-5, V-6, V-8, V-9, X-4), 26-28, 72
due diligence (V-28), 35
firm disqualification (V-23), 33
government employees (V-29B), 36
guidelines (V), 25
hiring potential transferee (V-31), 38
in-house counsel (V-29B), 36
150 Code of Professional Conduct

interviewing potential transferee (V-30), 36

lawyer as arbitrator (V-9), 28
multiple clients and (V-14, V-15, V-16), 29-30
practising in association (V-29D), 36
prohibition against acting for borrower and lender (V-10),
28
reasonable measures (V-32), 40
re former clients (V-12, V-13), 29
re outside interests (VII-2), 49
representation of organization (V-16), 30
re public office (X-2, X-3, X-4), 71-72
requests for prpoposals and other enquiries (V-17), 30
support staff (V-29A), 35
transfer between law firms (V-20-V-32), 31-42
transferring lawyer disqualification (V-24), 33
withdrawal and (XII-4), 82
Contempt of court (IX-14), 64
Contingency fees (IX-10), 62
Court
interpretation
Courtesy (IX-R, IX-16, Appendix), 57, 64, 129
in public appearances (XVIII-4), 108
Criminal prosecution (III-9), 13
Cross-examination
of other lawyers (IX-5), 59

Defence (IX-1, IX-10, IX-11), 57, 62-63

Disciplinary action
for lack of integrity (I-3), 1
re public office (X-8), 73
Disclosures
authorized by client (IV-9), 20
in financial matters between lawyer and client (XI-7), 77
of agreements guaranteeing recovery (IX-19), 65
of confiential information (IV), 17
of conflicting interests (V-5, V-6, V-8, V-9, X-4), 26-28, 72
 Code of Professional Conduct 151

of misappropriated funds (XV-1), 95

of retainer (IV-4), 19
required by law (IV-11), 21
to prevent crime (IV-12), 21
where lawyer’s conduct is in issue (IV-10), 20
see also Confidential information
Discovery obligations (IX-15), 64
Discrimination (XX), 115
Drug use (II-7(m)), 8
Duty to accommodate (XX-6), 118

Employees
duty to accommodate (XX-6), 118
harassment (XX-7), 118
non-discrimination (XX-1(d), XX-4, XX-5, XX-6, XX-7),
116-120
preventing breaches of confidentiality by (IV-9), 20
sexual harassment (XX-7), 118
supervision of (XVII-3), 104
Errors and omissions
disclosure and remedy (III-11, IX-3), 13, 59
insurance (III-11), 13

Fees (XI-R), 75
apportionment and division of (XI-5), 77
avoidance of controversy (XI-3), 76
factors to be considered (XI-1, XI-2), 75-76
hidden (XI-7), 77
interest on overdue accounts (XI-4), 77
liens for unpaid (XII-11), 84
reduction or waiving of (XI-2), 76
withdrawal for non-payment of (XII-6), 83
Fiduciary duties
confidential information and (IV-5), 19
re financial matters with clients (XI-7), 77
Financial obligations (XIX-7), 113
152 Code of Professional Conduct

Former clients
actions against (V-12, V-13), 29
Guilty pleas
agreement on (IX-13), 63

Harassment (XX-7), 118

Human Rights (XX-R), 115

Impartiality: see Conflicts of interest

Independence of the Bar (XXII), 125
Independent advice (III-12), 14
Insurance
in the case of errors and omissions (III-11), 13
Integrity (I-R and generally), 1
disciplinary action (I-3), 1
fundamental quality (I-1), 1
guiding principles (I-1, I-2), 1
key element for each rule (I-2), 1
Interpretation, xv
Intoxicant use (II-7(m)), 8

Judges
in practice after retirement or resignation (XIX-4, XIX-5),
112
Jurors (IX-21), 66
Justice, administration of (XIII-R), 87
criticism of the tribunal (XIII-4), 88
guiding principles (XIII-1, XIII-2), 87
improvement of (XIII-5), 89
scope of the rule (XIII-3), 88

Law firms
dissolution of (XII-13), 85
Lawyer as advocate (IX-R), 57
agreement on guilty plea (IX-13), 63
agreements guaranteeing recovery (IX-19), 65
 Code of Professional Conduct 153

cross-examination (IX-2), 57
courtesy (IX-16), 64
duties
as defence counsel (IX-10, IX-11), 62
as prosecutor (IX-9), 61
duty to withdraw (IX-4), 59
encouraging settlements (IX-8), 61
errors and omissions (IX-3), 59
harassment (XX-7), 118
non-discrimination (XX-1(d), XX-4), 116
prohibited conduct (IX-2), 57
role in adversary proceedings (IX-17), 65
scope of rule (IX-20), 66
sexual harassment (XX-7), 118
undertakings (IX-14), 64
unmeritorious proceedings (IX-7), 60-61
see also Witnesses
Legal assistants (XVII-4, XVII-5, XVII-6), 104-105
Legal services (XIV-R), 91
accessibility and availability (XIV-1, XIV-4, XIV-5), 91, 92-
93
advertising (XIV-1, XIV-2, XIV-3), 91-92
assistance in finding a lawyer (XIV-4, XIV-5, XIV-6), 92-93
enforcement of restrictive rules (XIV-8), 94
guiding principles (XIV-1, XIV-2, XIV-3), 91-92
legal aid (XIV-5), 93
referral services (XIV-5), 93
right to decline employment (XIV-6), 93
Letters
response to (XVI-6), 100
tone of (XV-3), 96

Maternity leave (XX-5(d)), 117

Media contacts (XVIII-6, XVIII-7, XVIII-8, XVIII-9, XVIII-10,
XVIII-11, XVIII-12, XVIII-13), 108-109
Mediator (XXI), 123
154 Code of Professional Conduct

Mistakes: see Errors and omissions

Multiple clients
apportionment of fees (XI-5), 77
confidential information re (IV-6), 19
treatment in the event of withdrawal (XII-10), 84

Non-discrimination (XX-R), 115

Non-legal matters
advice on (III-10), 13
Non-professional activities, (I-4), 2

Official duties: see Public office

Organizations
representation of (V-16), 30
Outside interests (VII-R), 49
definition (VII-1), 49
monies received (VII-5), 50

Parental leave (XX-5(d)), 117

Partners: see Associates
Privilege (IV-2), 18
with respect to clients’ property (VIII-6), 54
see also Confidential information
solicitor-client privilege (IV-2), 18
Professional activities
participation in (XV-4), 96
Promptness (II-8), 8
Property: see Clients’ property
Prosecutors (IX-9), 61
discovery obligations (IX-15), 64
Public appearances (XVIII-R), 107
guiding principles (XVIII-1), 107
media contacts (XVIII-6, XVIII-7, XVIII-8, XVIII-9,
XVIII-10, XVIII-11, XVIII-12, XVIII-13), 108-110
standard of conduct in (XVIII-4, XVIII-5), 108
statements concerning clients (XVIII-2, XVIII-3), 107-108
 Code of Professional Conduct 155

Public office (X-R), 71

appearances before official bodies (X-5), 72
conflicts of interest in (X-2, X-3, X-4), 71-72
disciplinary action (X-8), 73
disclosure of confidential information (X-7), 73
Public statements: see Public appearances

Quality of service (II-R-2, II-7), 5, 7

promptness (II-8), 8
see also Competence
Questionable conduct, avoidance of (XIX-R), 111
bail (XIX-9), 113
dealings with unrepresented persons (XIX-8), 113
duties after leaving public employment (XIX-3), 111
duty to meet financial obligations (XIX-7), 113
guiding principles (XIX-1, XIX-2), 111
insertion of retainer in client’s will (XIX-6), 113
retired judges (XIX-4, XIX-5), 112
standard (XIX-10), 114

Recorded conversations (XVI-5), 100

Responsibilities
harassment (XX-7), 118
sexual harassment (XX-7), 118
toward the profession (XV-R), 95
toward other lawyers individually (XVI-R, XX-4), 99, 116,
86
actions against (XVI-9, XVI-10, XVI-11), 101
Retainer
disclosure of (IV-4), 19
insertion in client’s will (XIX-6), 113

Secrecy: see Confidential information

Second opinions (III-5), 12
Settlement
duty to encourage (III-6, IX-8), 12, 61
156 Code of Professional Conduct

Sexual harassment (XX-7), 118

Sharp practice: see Technicalities
Solicitation: see Legal services
Solicitor-client privilege (IV-2), 18
Special interest groups (XVIII-10), 109
Special programs (XX-3), 116

Tape recording: see Recorded conversations

Technicalities
reliance on (IX-10, XVI-4), 62, 100
Test cases (III-8), 12
Tribunals
criticism of (XIII-4), 88

Unauthorized practice (XVII-R), 103

employment of suspended or disbarred persons (XVII-2),
104
guiding principles (XVII-1), 103
restrictions on legal assistants (XVII-4, XVII-5, XVII-6),
104-105
supervision of employees (XVII-3), 104
Undertakings (IX-14, XVI-7, XVI-8), 64, 100-101
Unrepresented persons (XIX-8), 113

Whistleblowing (IV-12), 21
Wills
insertion of retainer in (XIX-6), 113
Withdrawal (IX-4, XII-R), 59, 81
duties following (XII-8, XII-9, XII-10), 83-84
duty of successor lawyer (XII-12), 84
for non-payment of fees (XII-6), 83
guiding principles (XII-1, XII-2, XII-3), 81
lien for unpaid fees (XII-11), 84
notice to client (XII-7), 83
obligatory (XII-4), 82
optional (XII-5), 82
 Code of Professional Conduct 157

upon dissolution of law firm (XII-13), 84

Witnesses
communications with (IX-18), 65
prohibited conduct re (IX-2), 57
interviews of (IX-6), 60
lawyers as (IX-5), 59-60