Legal Research Guide to Ethics 2006 Compiled by Eric B. Appleby Published and Printed By: Maritime Law Book Ltd. P.O. Box 302, Fredericton, NB Canada E3B 4Y9 or Call Free 1-800-561-0220 from anywhere in Canada or U.S.A. (except Alaska and Hawaii) Fax No.: 506-453-9525 E-Mail: service@mlb.nb.ca Internet Web Site: www.mlb.nb.ca ISBN 0-9683370-9-0 National Reporter Forums  Bulletin Board   (www.mlb.nb.ca) Posts and comments are welcome on new, unique or interesting legal issues. Law students, article clerks, lawyers, librarians, professors, etc., can use the discussion board to exchange ideas about legal issues and case law. Use of the board is free. Go to www.mlb.nb.ca and click on MLB Forums. Or find your answer to many legal problems by accessing the over 200,000 cases in Maritime Law Book's case law subscription databases (i.e., the National Reporter System).  Legal Research Guide to Ethics Table of Contents Introduction ....................................................................... Chapter 1 1.1 Scope of this guide 1.2 What is legal ethics or professional responsibility? 1.3 Status of the law society rules and codes 1.4 The study of ethics in law schools 1.5 The scope of legal ethics The lawyer’s duty to the public or to the state .............. Chapter 2 2.1 Duty to the state The lawyer’s duty to the courts ....................................... Chapter 3 3.0 General 3.1 Duty to the court re representation of a client 3.2 Duty to the court to facilitate proceedings 3.3 Duty to the court by a lawyer not to abuse position 3.4 Duty to the court by a lawyer of full disclosure 3.5 Duty to the court of a lawyer not to obstruct justice 3.6 Duty to the court by a lawyer to present all relevant jurisprudence 3.7 Duty to the court by a lawyer where the accused admits to crime 3.8 Duty to the court respecting out-of-court discussions with judges 3.9 Liability of lawyer for costs for improper conduct 3.10 Duty of a lawyer to disclose to the court all relevant documents 3.11 Duty of a lawyer respecting undertakings The lawyer’s duty to the client ......................................... Chapter 4 4.1 General       4.2 Duty to compromise and settle 4.3 Duty of loyalty 4.4 Duty of competence 4.5 Duty to inform or advise client 4.6 Duty to advise a client re business ethics 4.7 Duty of confidentiality (professional secrecy)  4.8 Duty to a client re conflicts of interest, general principle 4.9 Conflicts of interest arising from lawyers' relations 4.10 Conflict of interests, acting for both sides 4.11 Conflict of interests, lawyer acting for several parties 4.12 Conflicts of interest, acting for a corporation 4.13 Conflict of interest, situations resulting in a conflict 4.14 Compensation to lawyer, general 4.15 Compensation to lawyer, duty to inform client 4.16 Compensation to lawyer, duty to keep time records 4.17 Compensation to lawyer, supervisory role of the courts 4.18 Compensation in estate matters 4.19 Compensation due to a lawyer, measure of, relevant considerations 4.20 Negligence, general 4.21 Negligence, settlements 4.22 Negligence, basis of liability 4.23 Negligence versus error of judgment 4.24 Negligence, considerations in determining liability The lawyer’s duty to fellow lawyers ................................ Chapter 5 5.1 General and notice of default proceedings  5.2 Requirement of courteous conduct 5.3 Duty of successor lawyer to protect an outstanding                        account of the former lawyer  5.4 Undertakings to other lawyers, enforcement The lawyer and the law society ........................................ Chapter 6 6.1 Powers of law societies 6.2 Discipline 6.3 Professional misconduct defined 6.4 Law society rules, guidelines, etc. The Prosecutor .................................................................  Chapter 7       7.1 Role of       7.2 Duties of prosecutor       7.3 Standard of conduct       7.4 Conflict of interest       7.5 Duty to call witnesses The Defence Lawyer ........................................................ Chapter 8       8.1 Extent or limits of duty       8.2 The defence lawyer, termination of relationship       8.3 The defence lawyer, conflict of interest       8.4 The defence lawyer, plea bargaining Preparation of wills .......................................................... Chapter 9      9.1 General      9.2 Duty where testator to disinherit a dependant      9.3 Duty of a lawyer to test the capacity of a testator      9.4 Duty of a lawyer to make notes in cases of doubtful            capacity Duty to third parties ....................................................... Chapter 10      10.1 Duty of a lawyer to opposite parties      10.2 Duty arising out of undertaking to third party to                  pay funds      10.3 Duty of a lawyer to a beneficiary when preparing a            will      10.4 Duty of confidentiality to third parties      10.5 Duty owed to the debtor of a client Legal Research Guide to Ethics Chapter 1 - Introduction 1.1 Scope of this guide Legal research is the process of finding a case, statute, regulation, text, etc., that is relevant to a legal issue. How does a lawyer resolve a legal issue? First, the lawyer must identify the issue. The issue can, in many cases, be resolved by finding a binding case (a precedent) or a relevant statute or regulation. Case law and statutes and regulations are referred to as primary sources of the law.  This legal research guide is meant to provide instruction on how to find cases that are relevant to an issue in the law of ethics or professional conduct for lawyers. This is not a guide to finding relevant statutes or regulations or code provisions. This guide contains some of the first principles of the law of legal ethics or professional conduct for lawyers. The guide does not contain the principles that govern the professional conduct of judges. Each section refers to a principle and to cases that apply the principle. At the end of each section is one of Maritime Law Book’s key numbers that can be used to search for additional cases that apply the principle - search in print law reports or at www.mlb.nb.ca. A key number can be used to do a computer search of a single province or to search simultaneously every common law jurisdiction in Canada. The MLB key numbers set out below are preceded by the words “Search aid”.  The MLB key numbers are useful because a point of law in a case is always assigned the same key number by MLB editors. For example, the key number Barristers and Solicitors Topic 1546 is assigned to all cases that consider the duty of competence of a lawyer to a client (see chapter 4, para. 4.4). A list of MLB key numbers is found in any recent MLB digest (a digest covers 10 volumes in any report series) and at www.mlb.nb.ca. To generate a key number list of cases, at www.mlb.nb.ca click on “Key Number Search”, click on a title, such as Barristers and Solicitors, and then click on the key number. See Appendix in this guide for a complete list of all the key numbers assigned by MLB editors to headings in the topic Barristers and Solicitors. Appendix also includes under each key number a list of cases that have been assigned the key number. The principles or rules stated in this booklet should always be compared with the relevant codes and statutes (e.g., Canadian Bar Association, Code of Professional Conduct; Alberta Code of Professional Conduct; Law Society Act, R.S.O. 1990; Legal Profession Act, R.S.A. 1980, etc). In addition to the case law and statutes and regulations a researcher should consult texts on the subject of legal ethics in Canada. For example, see Professional Conduct for Lawyers and Judges by Beverley G. Smith (2nd Ed. 2002). Legal Ethics by Mark M. Orkin (1957). 1.2 What is legal ethics or professional responsibility? Ethics: the science of morals in human conduct (Canadian Oxford Dictionary (2nd Ed. 2004)) Legal ethics: That branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client (Black’s Law Dictionary (6th Ed.) at page 894). A study of ethics helps us to understand which actions are right and which actions are wrong. The legal ethics of lawyers is governed by the case law and the law society codes that govern the practice of law. The courts have for nearly one thousand years set standards of moral and ethical conduct for legal practitioners. In England a statute in 1274 dealt with abuses by lawyers by prohibiting, inter alia, a lawyer from being a partner in a case and from acting for both sides - see Legal Ethics by Mark M. Orkin (1957) at page 7. Codes: all Canadian provinces and territories have adopted a code of professional conduct for lawyers plus supportive legislation. The codes set standards of conduct for lawyers that are designed to benefit the state, its justice systems and the members of the public - See Professional Conduct for Lawyers and Judges by Beverley G. Smith (2002) at chapter 1, para. 6.  The codes differ from province to province but they tend to have some common rules governing matters like conflict of interest. The codes are enforced by self-governing bar associations which have authority to discipline members. The codes and the relevant law society legislation and rulings do not cover every fact situation that may arise in a legal day, but they do offer discernable precepts for application to the matter at hand. 1.3 Status of the law society rules and codes Overview: The law society rules and codes do not have the force of statutes, regulations or judicial decisions. But the law society rules and codes do establish a standard of conduct for lawyers. .......................................................... In the case of Ridge View Development & Holding Co. Ltd. v. Simper (1989), 95 A.R. 282 (Q.B.), the headnote stated: The Law Society of Alberta published a professional conduct handbook - The Alberta Court of Queen's Bench stated that While I concede that propositions put forward in a handbook published by the Law Society do not by themselves have the force of a judicially accepted legal principle they are, nevertheless, clear and strong guidelines to all members of the Law Society of Alberta as to what are acceptable and recognized guidelines to practitioners should they choose to act in one of these situations. They are also at least one way of measuring whether a lawyer has lived up to the standard of care required . Also the law society rules and codes do not have the force of statutes. In the case of Enerchem Shipmanagement Inc. v. Ship Coastal (1988), 83 N.R. 256 (F.C.A.), the headnote stated: The Federal Court of Appeal stated that neither the Ontario Rules of Professional Conduct nor (and still less) the Commentaries on the Rules can be treated as legislative texts. Nevertheless, they, and in particular the Rules themselves, generally embody the principles laid down by the courts over the years and must be treated with great respect - See paragraph 5. In the case of Rosin v. MacPhail (1997), 85 B.C.A.C. 69; 138 W.A.C. 69 (C.A.), the British Columbia Court of Appeal stated at para. 16: [16] While the codes may be considered, they should not be applied as if they were statutory provisions governing the issue before the court. As Sopinka, J., said in MacDonald Estate v. Martin (1990), 121 N.R. 1 (S.C.C.), at para. 18: A code of professional conduct is designed to serve as a guide to lawyers and typically it is enforced in disciplinary proceedings ... The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. None the less, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy. But note that law societies are entitled to apply the codes in disciplinary proceedings against lawyers. In the case of Shaw v. Law Society of Prince Edward Island (1992), 101 Nfld. & P.E.I.R. 340; 321 A.P.R. 340 (P.E.I.T.D.), the headnote stated:  The Prince Edward Island Supreme Court, Trial Division, stated that Law Societies were entitled to use the Code as a guide in disciplinary proceedings and that the Law Society, in stating that the lawyer's conduct was contrary to the Code, was merely giving particulars of the alleged misconduct - See paragraphs 24 to 38. Further it should be noted that law society rules of conduct do not affect the rights of clients. In the case of Stewart v. Canadian Broadcasting Corp. et al. (1997), 32 O.T.C. 321 (Gen. Div.), the court stated at para. 192: [192] In my opinion, the rules and commentaries have two limiting features which are significant here: 1. The Law Society Act, R.S.O. 1990, c. L-8, gives the Law Society through Convocation the power to regulate lawyers' conduct. The Act does not give Convocation the power to regulate clients or their rights. In any event, in the rules and commentaries relevant to the issues herein, Convocation has not attempted to regulate clients or their rights. 2. The rules and commentaries are not an all inclusive code governing lawyers' conduct in every circumstance which may arise in professional life. They address only specific issues, and do so in a variety of ways ranging from mandatory to advisory. Search aid - MLB Key No. - Barristers and Solicitors Topic 5104 is assigned to cases that consider the status of law society rules and codes. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. See also Professional Conduct for Lawyer and Judges by Beverley G. Smith, chapter 1, para. 26. 1.4 The study of ethics in law schools There are 16 Canadian common law law schools. Fourteen of these law schools offer a credit course in legal ethics. A legal ethics course is compulsory at five of these law schools. Two of these law schools do not offer a credit course in legal ethics, being the University of Toronto and McGill University. In the U.S.A., the American Bar Association, which accredits American law schools, requires that all law students take a course in legal ethics. The American Bar Association Model Rules of Professional Conduct has been adopted by 44 states.  1.5 The scope of legal ethics Overview: The careful lawyer knows that questions of ethics are present in nearly every aspect of the practice of law. ........................................................................... It is difficult to practice in any area of the law and avoid questions of legal ethics. For example, conflict of interest questions may arise in any work that a lawyer does for a client. Questions of legal ethics are pervasive in the practice of law because of the diverse and often conflicting duties of a lawyer. Some of these duties include: a duty to the client, a duty to the public, a duty to the courts, a duty to third parties, a duty to the law society, etc. And all these duties may exist and conflict at the same time. And they may arise during any work by a lawyer. For example, should a lawyer act for both sides in the purchase and sale of real estate? Should a lawyer act for both the mortgagor and the mortgagee when a client applies for a mortgage loan? Should a criminal defense lawyer cross-examine a prosecution witness, who the lawyer knows to be accurate and truthful, in order to make the witness appear to be mistaken or lying? Should a lawyer give a client, charged with an offense, advice about the law, when the lawyer knows that the advice may induce the client to commit perjury? Should a lawyer act for a client against the client’s spouse, where the lawyer’s current partner was previously a member of a firm that acted for the spouse? Should a lawyer advise a client, who is under investigation by the police, to make no statement to the police under any circumstances? The following chapters consider the various duties owed by lawyers and how the courts have resolved ethical questions and conflicts that arise between the duties owed by lawyers. Chapter 2 - The lawyer’s duty to the public or to the state Overview: A lawyer is an officer of the court which requires a standard of conduct that includes a special duty to maintain and uphold the law.  ....................................................... 2.1 Duty to the state The lawyer’s duty to the state includes the entity, its systems and its people. The New Brunswick Code of Professional Conduct (2003), chapter 20, commentary 1, states: “The paramount duty of the lawyer is to serve the cause of justice”. The British Columbia Canons of Legal Ethics (1992), chapter 1, states: “A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law”. The lawyer is more than a private citizen. The lawyer has been considered as being almost a public servant. In Mayor of Norwich v. Berry (1767), 4 Burr. 2109, Yates, J. stated at page 2115 “The Court must have ministers; the attorneys are its ministers”. A lawyer is duty bound not to subvert the legal system. A lawyer must not counsel or assist his client to break or subvert the law. Examples of prohibited conduct are: - making a false recital in a deed; - subornation of perjury; - permitting a client to swear a false affidavit; - assisting a criminal to escape the country; - accepting a transfer of property in fraud of the transferor’s creditors; - the bringing of proceedings for the sole purpose of delay. In the case of Kelly v. Low (2000), 257 A.R. 279 (Q.B.), a lawyer was sued for damages for defamation. The Alberta Court of Queen’s Bench allowed the action and awarded the plaintiff $5,000 punitive damages. At para. 226 the court stated: [226] .... Ms. McLean referred extensively in her Brief to the Code of Conduct of the Law Society of Alberta. While in many ways I believe Mr. Kelly and Mr. Low deserve each other in the way they behaved, Mr. Low carries special responsibilities as an officer of the court. Society is entitled to expect members of the Law Society to conform to a higher standard of conduct. Mr. Low has fallen below that standard in writing the letter. As a member of the Law Society, it was incumbent upon him to be more sensitive to the issues raised in his letter and how he raised them. I am awarding Mr. Kelly $5,000 in punitive damages to punish Mr. Low for a standard of conduct I feel falls below that which the public is entitled to expect from a member of the Law Society. In the case of R. v. Morrison a lawyer was charged and convicted of fraud. In considering sentence the Nova Scotia Court of Appeal stated that a lawyer has a special duty to avoid criminal conduct. See R. v. Morrison (1975),13 N.S.R.(2d) 98; 9 A.P.R. 98 (C.A.). At para. 13 the Court of Appeal stated: [13] Furthermore, even had no client been involved, we must especially denounce crimes of fraud and forgery committed by a member of the Bar, a sworn officer of this Court. Such a man has a special duty. We must deal with a breach of that duty temperately, mercifully and without undue righteousness, but at the same time firmly and to warn others. Search aid - MLB Key No. - Barristers and Solicitors Topic 2041 is assigned to cases that consider the lawyer’s duty to the public or the state. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 3 - The lawyer’s duty to the courts Overview: The lawyer is an officer of the courts. A lawyer when acting for a client has “a prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other licence which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer” - see Queen v. O’Connell (1844), 7 I.L.R. 261, at page 313. ...................................................................................... 3.0 General The case law and the codes refer to the duty of courtesy and respect owed by a lawyer to the courts. One purpose of this duty is to enhance public confidence in the administration of justice. See Professional Conduct for Lawyers and Judges by Beverley G. Smith at chapter 1, para. 35 and Legal Ethics by Mark M. Orkin at page 32. But at the same time a lawyer has a duty to resist any attempt to influence him in the execution of his duties to the client. See chapter 4. 3.1 Duty to the court re representation of a client In the case of R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127 W.A.C. 279 (C.A.), the headnote stated: An unpaid defence counsel was denied leave to withdraw from the case on the eve of a scheduled two week trial - The Alberta Court of Appeal stated that independent of his obligations to his client, a lawyer who has accepted a general retainer from an accused and who has then gone on record for him before the trial court, is obligated to the court to continue to represent him unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of the accused's consent to the termination of his employment. Cause includes unhappy differences that make it impossible for the lawyer to defend, but does not include nonpayment of fees. - See paragraph 2. Search aid - MLB Key No. - Barristers and Solicitors Topic 651 is assigned to cases that consider the lawyer’s duty to the court re representation of a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.2 Duty to the court to facilitate proceedings In the case of Ashmore et al. v. Corporation of Lloyd's (1992), 145 N.R. 344 (H.L.), the headnote stated: The House of Lords stated that the parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. - See paragraph 25. In the case of Northern Meat Packers Ltd. and Restigouche Abattoir Ltd. v. Bank of Montreal; Bank of Montreal v. Bourgoin (1984), 52 N.B.R.(2d) 196; 137 A.P.R. 196 (T.D.), the headnote stated: The New Brunswick Court of Queen's Bench, Trial Division, rejected the notion that in our adversary system a defendant may wait and allow a plaintiff to do nothing until sufficient time has lapsed to apply for dismissal for want of prosecution - The court adopted the view that litigation and the thrust of the Rules of Court are grounded on a mutual obligation to expedite trial and decision - See paragraphs 60 to 62. In the case of Mireau v. Canada et al. (1995), 128 Sask.R. 142; 85 W.A.C. 142 (C.A.), the headnote stated: Mireau's appeal was dismissed for want of prosecution after failing to serve and file an appeal book and factum within the time required by court order - Mireau's solicitor did nothing - He did not file the documents, nor apply to the court to withdraw as solicitor of record - The Saskatchewan Court of Appeal stated that when counsel goes on record for an appellant he thereby incurs an obligation to keep the matter moving by complying with the rules respecting the requisition of a transcript of the evidence (where applicable) but also any directions that the court may make. ... Since those directions were ignored without any application to vary the time limits ... [the solicitor] failed to fulfil his professional obligation to this court. ... where an appellant decides to take no further steps counsel should obtain instructions to immediately abandon the appeal, thereby saving unnecessary applications and consequent costs. - See paragraphs 4 to 5. Search aid - MLB Key No. - Barristers and Solicitors Topic 652 is assigned to cases that consider the duty of a lawyer to the court to facilitate proceedings. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.3 Duty to the court by a lawyer not to abuse position In the case of Silver Jack Mines Ltd. v. McCarthy (1983), 51 N.B.R.(2d) 160; 134 A.P.R. 160 (T.D.), the headnote stated: Two lawyers were shareholders of a company whose assets were being wrongfully held as security by another shareholder - Under the guise of claiming a debt owed to the company by the shareholder the lawyers issued a writ of capias and had the shareholder arrested - The sole purpose of issuing the writ was to remove the shareholder from his property to allow the lawyers and others to enter the shareholder's land and seize the company assets - The New Brunswick Court of Queen's Bench held that the lawyers' conduct was both distasteful and an abuse of their position as members of the judiciary - See paragraphs 32, 38. Search aid - MLB Key No. - Barristers and Solicitors Topic 653 is assigned to cases that consider the duty of a lawyer to the court not to abuse his or her position. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.4 Duty to the court by a lawyer of full disclosure In the case of Comear, Re (1986), 77 N.S.R.(2d) 57; 191 A.P.R. 57 (T.D.), the headnote stated: Relevant case law - The Nova Scotia Supreme Court, Trial Division, referred to the duty of counsel to disclose an appeal decision that varied a trial decision upon which counsel's proposition or submission was based, if that decision was known to counsel - See paragraph 44. In the case of Transport Trailer Sales v. Robinson (2001), 147 O.A.C. 268 (Div. Ct.), the headnote stated: The defendant/appellant subpoenaed two witnesses who did not appear at trial - Counsel for the plaintiff had spoken to both witnesses asking them about the conduct money they had received and advising them that their attendance could not be compelled because they had not been paid sufficient conduct money - The Ontario Divisional Court stated that as an officer of the court, plaintiff's counsel had an obligation to reveal that information to the trial judge - It appeared that the evidence of the two witnesses could materially corroborate the defendant's case and if the trial judge had been aware of counsel's discussion with the witnesses in the context of a self-represented party, he would likely have afforded the defendant an opportunity to present that evidence - The court ordered a new trial. In the case of Myers v. Elman, [1939] All E.R. 484 (H.L.), the House of Lords stated at p. 491: If the defendants are guilty of the alleged frauds, it is hardly to be expected that they will make adequate affidavits without considerable pressure. However guilty they may be, an honourable solicitor is perfectly justified in acting for them and doing his very best in their interests, with, however, the important qualification that he is not entitled to assist them in any way in dishonourable conduct in the course of the proceedings. The swearing of an untrue affidavit of documents is perhaps the most obvious example of conduct which his solicitor cannot knowingly permit. He must assist and advise his client as to the latter's bounden duty in that matter, and, if the client should persist in omitting relevant documents from his affidavit, it seems to be plain that the solicitor should decline to act for him any further. He cannot properly, still less can he consistently with his duty to the court, prepare and place upon the file a perjured affidavit. Search aid - MLB Key No. - Barristers and Solicitors Topic 654 is assigned to cases that consider the duty of a lawyer to the court to make full disclosure. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.5 Duty to the court of a lawyer not to obstruct justice In the case of R. v. Goddard (D.) (1995), 206 N.R. 69; 193 A.R. 47; 135 W.A.C. 47 (S.C.C.), the headnote stated: Goddard was charged with a criminal offence - Goddard asked that the case be heard and resisted the Crown's application for an adjournment - Goddard then informed the court that the Crown was not in a position to produce witnesses and asked for a dismissal - Subsequently, the Crown charged Goddard with obstruction and requested a new trial - The Crown submitted that Goddard knew where the witnesses were and that they were available - The Crown also claimed that Goddard had undertaken to inform the police officers when they would be needed as witnesses - The Supreme Court of Canada, in affirming Goddard's acquittal, observed that while the conduct was not criminal, it would have been unethical if engaged in by a lawyer - See paragraph 2. In the case of R. v. Sweezey (G.G.) (1987), 63 Nfld. & P.E.I.R. 308; 194 A.P.R. 308 (Nfld. T.D.), the headnote stated: The Newfoundland Supreme Court, Trial Division, in sentencing the accused lawyer to 18 months in prison for wilfully attempting to obstruct justice, stated that a lawyer who attempts to obstruct justice by wilfully counseling a witness to be forgetful and evasive not only commits an offence contrary to s. 127 of the Criminal Code but also breaches his solemn duty as an officer of the court to uphold the course of justice - See paragraphs 6 to 8. Search aid - MLB Key No. - Barristers and Solicitors Topic 658 is assigned to cases that consider the duty of a lawyer to the court not to obstruct justice. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.6 Duty to the court by a lawyer to present all relevant jurisprudence In the case of R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109 (C.A.), the headnote stated: In a breathalyzer case, accused's counsel failed to cite relevant decisions of the Court of Appeal and Supreme Court of Canada which were against him - The Alberta Court of Appeal stated that it is counsel's duty to look for and cite to the court all relevant authority, whether it is for or against him, as has been well known for 70 years - See paragraphs 17 to 19  Search aid - MLB Key No. - Barristers and Solicitors Topic 660 is assigned to cases that consider the duty of a lawyer to the court to disclose all relevant jurisprudence. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.7 Duty to the court by a lawyer where the accused admits to crime In the case of R. v. Li (C.M.) (1993), 36 B.C.A.C. 181; 58 W.A.C. 181 (C.A.), the headnote stated: An accused charged with robbery admitted to his lawyer that he did it - The British Columbia Court of Appeal stated that the common understanding was that the lawyer could not call the accused or any other person to testify that the accused did not do it - Although the lawyer could not set up defences inconsistent with the admission, he could test the proof of the case in every proper way (e.g., challenging the sufficiency of identification evidence) - See paragraphs 57 to 74. Search aid - MLB Key No. - Barristers and Solicitors Topic 663 is assigned to cases that consider the duty of a lawyer to the court where the accused admits to crime. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.8 Duty to the court respecting out-of-court discussions with judges In the case of R. v. Mid Valley Tractor Sales Ltd. and Scott (1993), 140 N.B.R.(2d) 46; 358 A.P.R. 46 (T.D.), the court stated at paras. 13 and 14: [13] There are a number of cases to the effect that the practice of counsel going to see judges is in general an undesirable one . Some of the cases are referred to in A Book for Judges by The Hon. J.O. Wilson, published by the Canadian Judicial Council in 1980, beginning at pages 52 and 64. One of the cases cited in A Book for Judges includes the following observation: It appears that during the course of the trial the learned trial judge called counsel into his chambers to discuss certain aspects of the trial as the trial progressed. It appears also that this was done in the office of the learned trial judge and in the absence of the respondent. This is a practice that must be discouraged. It is a cardinal principle of our jurisprudence that a trial, whether with or without a jury, is a public trial except in certain statutory cases, and that the members of the jury, the accused and the public are entitled to free access to the law courts and the trial and to see and to hear the totality of the full drama of the trial. The jury, accused and the public are entitled to see and hear the examination and cross- examination of every witness called to testify, all objections made by counsel and to see and hear the rulings made by the trial judge. It is of great importance not only that justice should be done substantially but that it must appear to be done, and it cannot appear to be done where the learned trial judge has many conferences with counsel in his chambers. There may be exceptions but, if so the substance of the discussion in his chambers should be disclosed in open court and recorded, and the assent of counsel involved should likewise appear on the records. Branca, J.A., in R. v. Johnson, [1977] 1 B.C.L.R. 289, at p. 304. [14] In my view that quotation applies generally to all court procedures, not just to the conduct of criminal trials. In short, out- of-court discussions between counsel and a judge relating to a case before that judge are in my opinion usually inappropriate because justice should not only be done, but should manifestly and undoubtedly be seen to be done and nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice . R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256; [1923] All E.R. Rep. 233, at p. 234. Search aid - MLB Key No. - Barristers and Solicitors Topic 662 is assigned to cases that consider the duty of a lawyer to the court respecting out-of-court discussions with judges. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.9 Liability of lawyer for costs for improper conduct In the case of Rahall (Bankrupt), Re (2003), 349 A.R. 263 (Q.B.), the headnote stated: A bankrupt's lawyer (Charnock) mislead the court in order to obtain his client's discharge - After becoming aware of this and after the former bankruptcy trustee declined to take action, the court appointed the trustee's former counsel (Tkachuk) as amicus curiae to bring an application to set aside the discharge - The discharge was set aside - Tkachuk applied for costs against Charnock - The Alberta Court of Queen's Bench ordered Charnock to personally pay Tkachuk costs of $15,000 plus taxable disbursements - Charnock represented that his client had done all he was required to do to obtain the discharge when he knew or ought to have known that there were many outstanding matters yet to be addressed - Further, he told the court hearing the discharge application that the lead creditor had been given notice, when that was not the case. In the case of Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. et al. (2001), 293 A.R. 366; 257 W.A.C. 366 (C.A.), the headnote stated: Campbell was the sole shareholder of the plaintiff company - Tupper, junior counsel for the defendants, obtained a consent from Campbell's wife to disclose expert reports exchanged in divorce proceedings which had previously been filed in the courts ... and were a matter of public record - Mrs. Campbell's solicitor made the divorce action files available to Tupper - Tupper took copies of three documents and examinations for discovery, none of which had been filed in the court - Tupper and the defendants' senior counsel, Trawick, attempted to use the wrongfully obtained documents - A Chambers judge held that Tupper and Trawick were guilty of positive misconduct, but declined to find them in contempt - The Chambers judge declined to remove the solicitors from the record, but ordered that Tupper, Trawick and the defendants were jointly and severally liable to pay the plaintiff costs fixed at $50,000, plus disbursements - The Alberta Court of Appeal affirmed the decision. Search aid - MLB Key No. - Barristers and Solicitors Topic 842 is assigned to cases that consider the duty of a lawyer to the court and a lawyer’s liability for costs for improper conduct. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.10 Duty of a lawyer to disclose to the court all relevant documents In the case of Harper v. Harper (1979), 27 N.R. 554 (S.C.C.), the headnote stated: The Supreme Court of Canada stated that a lawyer must disclose relevant documents of which he has knowledge (in answer to a notice to produce) or refuse to continue acting for his client.  Search aid - MLB Key No. - Barristers and Solicitors Topic 886 is assigned to cases that consider the duty of a lawyer to the court to disclose all relevant documents. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 3.11 Duty of a lawyer respecting undertakings In the case of Bernard v. Elliott (1984), 62 N.S.R.(2d) 287; 136 A.P.R. 287 (Co. Ct.), the court stated at paras. 13 and 14: [13] Judge Bartlett then asked Mr. Kaiser, of counsel for the appellant, whether he was prepared to assure the court 'as an officer of the court' that his client would not permit anyone to use marijuana or have it in the home while the matter was before the court. Mr. Kaiser very properly replied that he was able to assure the court 'insofar as any lawyer can on behalf of his client'. The court pressed the matter and Mr. Kaiser gave a personal assurance. [14] It was improper for the court to ask for such an assurance and it was improper for counsel to give one, although difficult to avoid in the circumstance. A barrister ought not to have any personal interest in a case other than his fee and it is better if that is fixed and paid in advance. That is the argument against contingent fees and although that rule has been changed in some jurisdictions, because of substantial countervailing factors, it is still a sound principle. A lawyer ought to be able to advise his client without any motive for self-deception, and he ought to be able to act in court without any motive other than to serve his client and to serve the administration of justice. He is not permitted to vouch personally either for the facts in support of his client's case or for the truthfulness and reliability of the witnesses he puts forward. He is not permitted to vouch for the reliability of his client or, for example, to go bail for the client personally. All of this is supported not only by the ethics and tradition of the profession and the practice of the courts but in many instances it has been laid down by the courts or by a professional body. See, for example, the Code of Professional Conduct, of the Canadian Bar Association, Chapter V, paragraph seven, etc. This document, while flawed, has much to say on the question. Search aid - MLB Key No. - Barristers and Solicitors Topic 961 is assigned to cases that consider the duty of a lawyer to the court respecting undertakings. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 4 - The lawyer’s duty to the client Overview: In the text Legal Ethics by Mark M. Orkin, the author states at page 73 that until the beginning of the 19th century a lawyer “was justified in going to virtually any lengths on behalf of a client”. Today a lawyer’s support of a client’s cause must be tempered by the lawyer’s obligations as an officer of the court. Trial tactics that include “trial by ambush” have been discredited. The Manitoba Court of Appeal stated that ... maximum disclosure in the interest of expeditious, economic and just resolution of disputes has replaced trial by ambush”. See Jobes v. Zolinski et al. (1999), 134 Man.R.(2d) 302; 139 W.A.C. 302 (C.A.), at para. 14. ............................................................................ 4.1 General A lawyer’s duty to a client must be tempered by the lawyer’s duty to the courts and the administration of justice. In Myers v. Elman, [1940] A.C. 282 (H.L.), at page 307 the House of Lords stated that it is the lawyer’s duty to decline to act in any case where there exists an irreconcilable conflict between the lawyer’s duty to the court and the duty to the client. In the case of Couture v. Lamontagne (1996), 151 Sask.R. 283 (Q.B.), the court stated at para. 25: [25] The decision of Millican v. Tiffin Holdings Ltd. (1965), 50 W.W.R.(N.S.) 673 (Alta. T.D.), at p. 674 is often quoted in regard to the standard of care required of a lawyer. At p. 674 this statement is made: The obligations of a lawyer are, I think, the following: (1) To be skillful and careful; (2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary; (3) To protect the interests of his client; (4) To carry out his instructions by all proper means; (5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him; (6) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria. Search aid - MLB Key No. - Barristers and Solicitors Topic 1541 is assigned to cases that consider the duties of a lawyer to a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.2 Duty to compromise and settle A lawyer has a duty to encourage a client to compromise and settle a claim. See Professional Conduct for Lawyers and Judges by Beverley G. Smith, chapter 6, para. 5. Search aid - MLB Key No. - Barristers and Solicitors Topic 1560 is assigned to cases that consider the duty of a lawyer to advise settlement. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.3 Duty of loyalty In the case of R. v. Neil (D.L.) (2002), 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73 (S.C.C.), the headnote stated: The Supreme Court of Canada discussed a lawyer's duty of loyalty to an existing client - The court stated that the general prohibition [against acting against an existing client] is undoubtedly a major inconvenience to large law partnerships and especially to national firms with their proliferating offices in major centres across Canada. Conflict searches in the firm's records may belatedly turn up files in another office a lawyer may not have been aware of. Indeed, he or she may not even be acquainted with the partner on the other side of the country who is in charge of the file. Conflict search procedures are often inefficient. Nevertheless it is the firm not just the individual lawyer, that owes a fiduciary duty to its clients, and a bright line is required. The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client, even if the two mandates are unrelated, unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. - See paragraph 29. Search aid - MLB Key No. - Barristers and Solicitors Topic 1545 is assigned to cases that consider the duty of loyalty of a lawyer to a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.4 Duty of competence In the case of Financeamerica Realty Ltd. v. Gillies (1983), 40 Nfld. & P.E.I.R. 169; 115 A.P.R. 169 (Nfld. C.A.), the headnote stated: The Newfoundland Court of Appeal stated that a solicitor will be liable if his error was one that the ordinary competent solicitor would not have made - See paragraph 5. Search aid - MLB Key No. - Barristers and Solicitors Topic 1546 is assigned to cases that consider the duty of competence of a lawyer to a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.5 Duty to inform or advise client In the case of Wong et al. v. 407527 Ont.ario Ltd. et al. (1999), 125 O.A.C. 101 (C.A.), the headnote stated: The Ontario Court of Appeal stated that although ordinarily clients retain lawyers for legal advice not business advice, on some transactions the two are intermingled and no clear dividing line can be drawn. Thus, a lawyer may well have a duty to give advice on the financial or business aspects of a transaction, depending on the client's instructions and sophistication, and on whether the client is relying on the lawyer for that kind of advice. - See paragraph 46. In the case of R. v. Michelin (L.) (1999), 93 O.T.C. 385 (Gen. Div.), the court stated at paras. 34 and 35: [34] The Rules of Professional Conduct specifically require a lawyer to keep his client informed and respond to client communication. Rule 2, commentary 8 gives various examples of conduct that does not meet the quality of service required of a barrister or solicitor. These include: commentary 8(a), failure to keep the client reasonably informed; commentary 8(c) unexplained failure to respond to the client's telephone calls; and commentary 8(f) failure to answer within a reasonable time a communication that requires a reply.  [35] In my opinion, where the client faces serious criminal jeopardy and the client has only one telephone meeting with the lawyer, that lawyer's failure to respond to the client's telephone calls for two weeks prior to trial represents a breach of the lawyer's professional duties. In the case of Bank of Nova Scotia v. Omni Construction Ltd. Telfer Investments Ltd., Schwartz, Bauer and Tufts (1983), 22 Sask.R. 161 (C.A.), the headnote stated: In the presence of his lawyer a client signed a guarantee - The lawyer failed to make the client aware of what he was signing and the significance of the document - The Saskatchewan Court of Appeal affirmed that the lawyer was liable to the client for the client's liability under the guarantee. Search aid - MLB Key No. - Barristers and Solicitors Topic 1554 is assigned to cases that consider the duty of a lawyer to inform or advise a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.6 Duty to advise a client re business ethics In the case of Holt, Renfrew & Co. v. Singer (Henry) Ltd., Pekarsky and Thompson & Dynes Ltd. (1982), 37 A.R. 90 (C.A.), the Court of Appeal stated at para. 110: .... a solicitor has no duty to instruct his client in business ethics. If the client announces an intention which strikes the solicitor as dishonourable, the solicitor can do no more than quit the client. Search aid - MLB Key No. - Barristers and Solicitors Topic 1558 is assigned to cases that consider the duty of a lawyer to advise a client on business ethics. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.7 Duty of confidentiality (professional secrecy) Overview: A lawyer is required to keep confidential anything arising out of the client relationship. Exceptions include proposals of crime by a client. ............................................................. In the case of Cummings et al. v. Anthony-Robinson et al. (1995), 176 A.R. 127 (Q.B.), the headnote stated: The Alberta Court of Queen's Bench stated that Persons who retain lawyers have a real expectation of as much confidentiality as is possible. For some clients, it may well be that the fact that they have retained a lawyer, and the fact that they have retained a specific law firm, are as confidential as the subject of the deliberations between them and their lawyer. Care should be taken by lawyers not to disclose the names of their clients unnecessarily”- See paragraph 12. In the case of Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1995), 171 A.R. 241 (Q.B.), the headnote stated: The Alberta Court of Queen's Bench stated that it is settled law that a lawyer must not voluntarily disclose confidential information which he or she receives in a professional capacity without the consent of the client or a direction of the court - See paragraph 293. In the case of Roberts v. Sodhi, [2003] O.T.C. 179 (Sup. Ct.), the Court of Ontario, Superior Court of Justice, stated at paras. 14 and 15: [14] Rule 2.03(1) of the Rules of Professional Conduct, Law Society of Upper Canada, provides that: “A lawyer shall at all times 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 unless expressly or impliedly authorized by the client or required by law to do so”. [15] The Commentary to Rule 2.03(1) of the Rules of Professional Conduct further provides that “This rule must be distinguished from the evidentiary rule of lawyer and client privilege concerning oral or documentary 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 the fact that others may share the knowledge. “A lawyer owes the duty of confidentiality to every client without exception and whether or not the client 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”. Beverley G. Smith states in chapter 2, para. 31, of Professional Conduct for Lawyers and Judges: [31] There appear to be at least six instances where the very high duty of confidentiality may be abrogated by the lawyer. They are: (1) where the client expressly or impliedly authorizes the disclosure; (2) where the lawyer is seeking to establish or collect a fee; (3) where the lawyer is defending against an allegation by the client of malpractice or misconduct; (4) where the prevention of a crime justifies disclosure by the lawyer (and where the anticipated crime is one involving violence, disclosure is mandatory); (5) where disclosure is authorized by law; (6) where disclosure is authorized by order of a court of competent jurisdiction.  Search aid - MLB Key No. - Barristers and Solicitors Topic 1621 is assigned to cases that consider the duty of confidentiality of a lawyer to a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.8 Duty to a client re conflicts of interest, general principle For centuries it has been a well settled rule that no one can be an attorney for both sides even with the consent of the parties. In Masons’ Case (1672), 89 E.R. 55, an attorney was struck from the roll because “he had been an ambidexter, namely, after he was retained by one side he was retained by the other side”. A leading case that sets the standard for modern conflict of interest cases is MacDonald Estate v. Martin (1990), 121 N.R. 1; 70 Man.R.(2d) 241 (S.C.C.); in this case the Supreme Court of Canada stated a lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail . The rule against conflicts has been extended to such matters as the purchase and sale of real estate. In the case of John Burrows Ltd. v. Subsurface Surveys Ltd. (1967), 62 D.L.R.(2d) 700, the New Brunswick Court of Appeal stated at page 707: “All transactions of purchase and sale include a possibility of conflicting interests developing. Barristers and solicitors should be careful to avoid acceptance of any retainer which involves such a possibility”. In the case of Lafferty v. N.B. Coal Ltd. (1995), 190 N.B.R.(2d) 1; 484 A.P.R. 1 (C.A.), the Court of Appeal affirmed the removal from the record a firm of solicitors. The court stated at paras. 4 and 5: [4] I agree with the decision by Mr. Justice McLellan in ordering the removal of the firm as solicitors of record. As he held, in some cases, and this is one of them, it is the perception of conflict that taints the file. Perhaps the result denies to one of the litigants, in certain instances, the opportunity to engage the counsel of his or her choice. Nevertheless it may be necessary, as here, to avoid an adverse public perception. It is a price that the profession must pay in order to preserve the integrity of the concept of solicitor and client privilege. [5] Courts are not bound to apply a code of ethics before determining whether to remove a firm of solicitors from the record. Courts have inherent jurisdiction to remove solicitors from the record when they find a conflict of interest. This also applies to the appearance of conflict. Even an appearance of impropriety should be avoided. There is a presumption that lawyers who work together share each others confidences. This does not come about as a form of legal osmosis, it is a practical perception. Unless there is clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosures will be made to other members of the firm, an inference should be drawn that the tainted information has been shared. Search aid - MLB Key No. - Barristers and Solicitors Topic 1601 is assigned to cases that consider the duty of a lawyer to a client re conflicts of interest. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.9 Conflicts of interest arising from lawyers’ relations In the case of Holte v. Macor (1998), 229 A.R. 70 (Q.B.), the headnote stated: Macar was the driver of an automobile that collided with a tractor - Macar's three passengers sued Macar and the truck driver for damages for personal injuries - Meanwhile, Macar was convicted under the Highway Traffic Act of driving without due care and attention - At his first appearance regarding the Highway Traffic Act offences, he was represented by K. Tarrabain, as agent for his lawyer - When he attended for examination for discovery in the personal injury action, he discovered that the three passengers were represented by Tarrabain's law firm - Macar applied to have the plaintiffs' solicitor and law firm removed for conflict of interest - The Alberta Court of Queen's Bench allowed the application. In the case of Turner v. Wheatland Baking Co. (1991), 122 A.R. 369 (Q.B.), the headnote stated: The plaintiff shareholder of the defendant company sued the corporate and personal defendants respecting the cancellation of some of his shares - The lawyer now representing the defendants was also a shareholder and represented both defendants before and after the cancellation -The plaintiff applied for an order restraining the lawyer and his firm from acting for the defendants in the present action - The Alberta Court of Queen's Bench allowed the application on the ground that the lawyer was in a conflict of interest position. In the case of Taylor v. Nellist, [2004] O.T.C. 1052 (Sup. Ct.), the court summarized the law relating to conflicts of interest arising from a lawyer’s relations at paras. 22 to 24: [22] The standard for the removal of counsel is an objective one, being that of a reasonably informed member of the public. See the case of MacDonald Estate vs. Martin, [1990] 3 S.C.R. 1235. Thus, a solicitor should be removed as solicitor of record if a fair- minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. See the case of Everingham vs. Ontario, 8 O.R. (3rd) 121, at paragraph 29. [23] Moreover, there does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test. In MTS International Services Inc. v. Warnat Corp. Limited, [1981] 31 O.R. 221 at page 224 Justice Montgomery wrote, A lawyer should avoid even the appearance of professional impropriety. This is particularly true when the litigation involves a family dispute. See the case of Goldberg vs. Goldberg, (1982) 31 R.F.L. (2nd) 453 at paragraph 8. [24] The basis for the above-mentioned statement of the law in this area can be summarized by that well-known quote from the case of R. vs. Sussex Justices, [1924] 1 K.B. 256 at page 259, It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done . Search aid - MLB Key No. - Barristers and Solicitors Topic 1608 is assigned to cases that consider the duty of a lawyer to a client re conflicts of interest arising out of the lawyer’s relations. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.10 Conflict of interests, acting for both sides In the case of Jeffers v. Calico Compression Systems et al. (2002), 314 A.R. 294 (Q.B.), the headnote stated: The plaintiff (Jeffers) and defendant (Curtis) agreed to form a company - The defendant's solicitor (Dawe) acted on behalf of both parties in incorporating the company, having guarantees signed and drafting the shareholder's agreement - A dispute as to the division of shares proceeded to litigation - Dawe represented the defendant - The plaintiff applied for removal of Dawe as solicitor of record - The Alberta Court of Queen's Bench held that Dawe was precluded from acting for the defendant - Although Dawe had never been formally retained by the plaintiff, no monies were ever paid by the plaintiff to Dawe and there was no confidential information imparted, the plaintiff had grounds to reasonably believe a solicitor/client relationship existed - Dawe acted for both parties on the very issue in dispute - It would be unfair and improper for Dawe to continue to act for the defendant. In the case of Ridge View Development & Holding Co. Ltd. v. Simper (1989), 95 A.R. 282 (Q.B.), the headnote stated: The Alberta Court of Queen's Bench stated that it was not a breach of fiduciary duty for a lawyer to act for both sides in a real estate transaction, provided that both sides were fully informed and consented - The court stated that the lawyer must (1) advise both sides of their contractual rights and obligations, (2) advise each that if an actual or potential conflict arises he must step aside and advise each to seek independent counsel and (3) advise both sides that the usual solicitor-client privilege did not apply and that relevant information from one side must be disclosed to the other side - See paragraphs 49 to 61. In the case of Ferris v. Rusnak (1983), 50 A.R. 297 (Q.B.), the headnote stated: A lawyer acted for an unsophisticated lender of $50,000 - The lawyer also acted for the borrower - The Alberta Court of Queen's Bench stated that a conflict of interest arises immediately in such circumstances (see paragraph 30) and the court referred to the lawyer's duty to advise the lender to seek independent legal advice (see paragraphs 32 and 33) - The court also referred to the lawyer's duty in circumstances when such a lender is knowledgable (see paragraph 30). Search aid - MLB Key No. - Barristers and Solicitors Topic 1604 is assigned to cases that consider the duty of a lawyer to a client re conflicts of interest arising out of acting for both sides. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.11 Conflict of interests, lawyer acting for several parties In the case of R. v. Doz (1984), 52 A.R. 321 (C.A.), the headnote stated: Woitt identified himself as Hutchinson when charged by police with impaired driving - Woitt told Hutchinson what he did and both sought legal advice from the accused solicitor -The Alberta Court of Appeal stated that it was absolutely impossible for one lawyer to act for both parties, Woitt and Hutchinson, under the circumstances in which there was such a conflict of their interests - See paragraph 7. In the case of Brumer v. Gunn (1982), 18 Man.R.(2d) 155 (Q.B.), the headnote stated: The Manitoba Court of Queen's Bench held that a lawyer was in a conflict of interest situation where he was advising one client to invest funds in a business which was also a client - The business subsequently failed and the funds were never recovered - See paragraph 25. In the case of MacCulloch Estate and MacLennan v. Corbett (1982), 49 N.S.R.(2d) 663; 96 A.P.R. 663 (C.A.), the headnote stated: Several individuals retained a lawyer to incorporate and organize a company, which the lawyer did negligently - When a dispute arose among the individuals the lawyer proceeded to act in the interest of one of them - The Nova Scotia Court of Appeal held that the lawyer was acting for all of the individuals and acted in a conflict of interest, in continuing to act after the dispute arose - See paragraphs 31 to 33. Search aid - MLB Key No. - Barristers and Solicitors Topic 1614 is assigned to cases that consider the duty of a lawyer to a client where the lawyer acts for several parties. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.12 Conflicts of interest, acting for a corporation Overview: When acting for a corporation, a lawyer should be wary of the extent of the lawyer’s duty. When acting for a client corporation a lawyer’s duty may extend to protecting the interests of the shareholders and the interests of the creditors of the corporation. See Toronto Globe and Mail, May 17, 2006 where Jacquie McNish reported that three prominent law firms settled claims against them by creditors, shareholders and others. The claims arose out of work done by the law firms for corporations. The three claims were settled for $110 million, $32 million and $30.25 million. 4.13 Conflict of interest, situations resulting in a conflict In the case of Gottschlich v. Gottschlich (2001), 291 A.R. 173 (Q.B.), the headnote stated: Mr. Gottschlich retained a lawyer from Cleall Pahl to represent him in his divorce - The lawyer's legal secretary subsequently left the firm to work for Emery Jamieson, the firm representing Mrs. Gottschlich - In fact, the legal secretary became the secretary for the lawyer representing Mrs. Gottschlich - At issue was whether the legal secretary's employment at Emery Jamieson created a disqualifying conflict of interest sufficient to remove Mrs. Gottschlich's lawyer as solicitor - The Alberta Court of Queen's Bench held that the legal secretary possessed relevant confidential information and despite Emery Jamieson's bona fide efforts to isolate her from the file, there was a sufficient conflict of interest created that Mrs. Gottschlich's lawyer must remove herself. In the case of McDonald Crawford v. Morrow (2002), 324 A.R. 8 (Q.B.), the headnote stated: A law firm applied to have a bill taxed - The firm was still representing the client on an appeal - The client, while served, failed to appear on the taxation - The taxing officer allowed the bill in full - The Alberta Court of Queen's Bench stated that it was the duty of the Firm to advise the Client that there was a substantial amount at stake, that the Taxing Officer was going to make a decision that could be binding on the Client, and the Client should seek independent legal advice. Instead, throughout, the Firm continued to act as counsel for the Client when it was in a clear conflict. - See paragraph 27. In the case of R. v. Werkman (A.H.) (1977), 198 A.R. 35 (Q.B.), the headnote stated: The accused was charged with manslaughter and his trial was pending - A lawyer from the accused's counsel's law firm had previously represented an essential Crown witness - The accused's counsel would have to impeach the Crown witness's credibility at the trial - The Crown and the accused's counsel applied to the court for directions on whether the accused's counsel could continue to act - The Alberta Court of Queen's Bench disqualified the accused's counsel from acting - The court referred to the applicable test and stated that there was a deemed sharing of information between the lawyers from the firm, that there was a risk that this information would be used to prejudice the Crown witness and that the proper administration of justice was a paramount consideration - See paragraphs 9 to 20. In the case of MacDonald v. Howard Estate et al. (1995), 170 A.R. 376 (Q.B.), the headnote stated: Defendants applied to remove the plaintiff's counsel (Pipella), arguing that a conflict of interest arose when Pipella joined with Warren to form an independent association for the practice of law - Warren had previously acted in the matter on behalf of one of the defendants and admitted receiving confidential information which could be prejudicial if revealed - Warren stated that he had never discussed the litigation with Pipella and the two undertook not to communicate about the matter - The Alberta Court of Queen's Bench held that there were not sufficient safeguards to satisfy a reasonably informed member of the public that no disclosure would occur - The interests of justice and the integrity of the legal profession favoured discharging Pipella from the file. Search aid - MLB Key No. - Barristers and Solicitors Topic 1619 is assigned to cases that consider the duty of a lawyer to a client and the situations that result in a conflict of interest. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.14 Compensation to lawyer, general In the case of Cawood v. Mirza (1981), 13 Sask.R. 428 (Dist. Ct.), the court referred to the relevant factors in determining a fair and reasonable fee. At para. 7 the court stated: [7] The Canadian Bar Association Code of Professional Conduct, which has been adopted as a bylaw of the Law Society of Saskatchewan, includes the following rule: The lawyer should not (a) stipulate for, charge or accept any fee which is not fully-disclosed, fair and reasonable; By way of commentary upon the rule it is stated: A fair and reasonable fee will depend upon 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; (e) the amount involved or the value of the subject matter; (f) the results obtained; (g) tariffs or scales authorized by local law; (h) such special circumstances as loss of other employment, uncertainty of reward, and urgency. A fee will not be fair and reasonable if it is one which 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. Search aid - MLB Key No. - Barristers and Solicitors Topic 3000 is assigned to cases that consider the duty of a lawyer to a client and general principles applicable to compensation to the lawyer. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.15 Compensation to lawyer, duty to inform client In the case of Boerrichter v. Robertson (1992), 98 Sask.R. 207 (Q.B.), the headnote stated: A solicitor's accounts were taxed and claims for legal fees and interest were disallowed - The solicitor applied for a review of the taxation officer's decision - The Saskatchewan Court of Queen's Bench dismissed the application - The court held solicitors are not bound by estimates, however, when the actual cost exceeds the estimate and no hourly rate for extra work is discussed, the taxation officer must protect the client - The court also held the solicitor failed to provide the client with required information about the rate and date of commencement of the interest charged - See paragraphs 8 to 13. Search aid - MLB Key No. - Barristers and Solicitors Topic 3003 is assigned to cases that consider the duty of a lawyer to inform a client respecting fees. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.16 Compensation to lawyer, duty to keep time records In the case of Lindsay v. Stewart, MacKeen & Covert (1988), 82 N.S.R.(2d) 203; 207 A.P.R. 203 (C.A.), the headnote stated: The Nova Scotia Court of Appeal held that where a lawyer agreed to charge on an hourly and daily basis, he had a duty to maintain detailed time records and was not entitled to charge for more than the time spent - See paragraphs 41 to 46, 51. Search aid - MLB Key No. - Barristers and Solicitors Topic 3008 is assigned to cases that consider the duty of a lawyer to a client respecting fees and the duty to keep time records. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.17 Compensation to lawyer, supervisory role of the courts In the case of Plazavest Financial Corp. et al. v. National Bank of Canada et al. (2000), 133 O.A.C. 100 (C.A.), the Ontario Court of Appeal stated at paras. 14 and 15: [14] The rendering of legal services and the determination of appropriate compensation for those services is not solely a private matter to be left entirely to the parties. There is a public interest component relating to the performance of legal services and the compensation paid for them. That public interest component requires that the court maintain a supervisory role over disputes relating to the payment of lawyers' fees. I adopt the comments of Adams, J., in Borden & Elliott v. Barclays Bank of Canada (1993), 15 O.R.(3d) 352, at pp. 357-358 (Gen. Div.), where he said:  ... The Solicitors Act begins with s. 1 reflecting the legal profession's monopoly status. This beneficial status or privilege of the profession is coupled with corresponding obligations set out in the Act and which make clear that the rendering of legal services is not simply a matter of contract. This is not to say a contract to pay a specific amount for legal fees cannot prevail. It may. But even that kind of agreement can be the subject of review for fairness: see s. 18 of the Solicitors Act. [15] The observation of Adams, J., that the rendering and payment of legal accounts is not simply a matter of contract finds support in a long established line of authority which recognizes, apart entirely from the Act, that a superior court has an inherent jurisdiction, as part of its disciplinary authority over lawyers, to direct the assessment of lawyers' fees: Peel Terminal Warehouses Ltd. v. Wootten, Rinaldo & Rosenfeld (1978), 21 O.R.(2d) 857, at p. 861 (C.A.); Minkarious v. Abraham, Duggan (1995), 44 C.P.C.(3d) 210, at p. 242 (Ont. Gen. Div.). Search aid - MLB Key No. - Barristers and Solicitors Topic 3015 is assigned to cases that consider the duty of a lawyer to a client respecting fees and the supervisory role of the courts. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.18 Compensation in estate matters In the case of Proniuk Estate, Re (1984), 59 A.R. 97 (Sur. Ct.), the headnote stated: The Alberta Surrogate Court held that in determining the amount of compensation payable to the solicitor of an estate the court considers (1) the size of the estate (2) the care and responsibility required and attendance thereon (3) the time occupied in performing the various tasks (4) the skill and ability demonstrated in the administration and (5) the degree of success which has attended the administration - See paragraph 14. In the case of Salmon Estate, Re (2004), 370 A.R. 316 (Q.B.), the headnote stated: Wilson acted as the lawyer for the estate of a deceased - The estate, valued at $685,552.17, had been largely distributed to the beneficiaries - $128,000 remained to be distributed - Wilson applied for taxation of her accounts which totalled over $140,000 - Wilson asserted that the deceased had agreed to being charged 20% of the estate's value - There was no independent evidence of the agreement - The Alberta Court of Queen's Bench stated that s. 11 of the Alberta Evidence Act prohibited Wilson from obtaining judgment on her own evidence where the evidence was not corroborated by other material evidence - Wilson's agreement with the deceased should have been confirmed in writing - A fee of 20% was excessive on an estate of this size, particularly where it was not complex - Wilson was entitled to the guideline amount ($9,130) for the core legal services as described in the Surrogate Rules and compensation on a quantum meruit basis ($11,449.50) for the non-core legal services - See paragraphs 19 to 28. Search aid - MLB Key No. - Barristers and Solicitors Topic 3406 is assigned to cases that consider the compensation due to a lawyer in estate matters. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.19 Compensation due to a lawyer, measure of, relevant considerations In the case of Sellner Estate v. Pesto (1982), 17 Man.R.(2d) 101 (C.A.), the Court of Appeal stated at paras. 15 to 17: [15] There appears to have developed in recent years among certain members of the bar an idea that it is appropriate to charge an hourly rate for services rendered to clients. No doubt clients have a right to bargain for hourly rates if they so desire; I see that in the new tariff there will be a discretion in judges to allow hourly rates in some cases. However, I am of the opinion that hourly rates are not a normal method of charging for legal services in the absence of a special agreement. [16] Hourly rates favor the slow over the quick; they favor delays and sideroads and interlocutory proceedings. In my opinion, in an ordinary matter, it would be absurd to pay a lawyer by the time he puts in, just as absurd as it would be to pay a preacher by the length of his sermon. Time, of course, is a factor to be taken into account but it is only one factor. [17] In my opinion, lawyer fees are to be settled in the usual case in accordance with the principles set out in the Queen's Bench Tariff. The taxing officer: ... shall have regard to all of the circumstances, including (but not in any way restricting the generality of the foregoing) the nature, importance, or urgency of the matters involved, the time occupied, the circumstances and interest of the person by whom the costs are payable, the general conduct of the proceedings, and the amount, skill, labour, and responsibility involved, ... In the case of Nathanson, Schachter & Thompson v. Albion Securities Co. et al. (2004), 204 B.C.A.C. 200; 333 W.A.C. 200 (C.A.), the headnote stated: During the course of complex litigation, a law firm issued interim monthly accounts that set fees calculated on hourly rates, albeit without any reference to the basis of calculation - A settlement resulted in the clients receiving $11.7 million gross - The firm's final account included a $250,000 bonus based on the litigation's success - The total amount billed was $871,431.88, which included fees of $741,929 - A registrar reviewed the account and allowed it in full - The British Columbia Court of Appeal affirmed the decision - The court rejected the clients' assertion that their subjective misapprehension that they would be billed on a straight hourly basis was sufficient to found an estoppel unless the firm explicitly disabused them of that misapprehension - The test for a representation sufficient to found an estoppel was an objective standard - The registrar's conclusion that the monthly accounts and other circumstances did not objectively demonstrate a pattern of billing based exclusively on hourly based charges was a factual inference and was not clearly wrong. In the case of Sikora v. Krawchuk (1996), 125 Man.R.(2d) 81 (Q.B.), the headnote stated: A Master assessed a lawyer's bill for services rendered in connection with marital matters - The bill totalled $5,395.09, $4,900 of which represented fees - There was no retainer letter confirming an hourly rate or the basis on which the lawyer would be charging - There was insufficient evidence in diary entries and from the file to ascertain the time spent by the lawyer - The Master held that in these circumstances the lawyer was entitled to compensation on a quantum meruit basis and that a fair and reasonable fee for the services rendered was $2,500 ($150 per hour) - A total bill of $2,828.49 was allowed - The Master considered that the matter did not present any particular difficulty and that the lawyer did not provide any special skill or service - The Manitoba Court of Queen's Bench arbitrarily added an additional two hours to the bill and increased the hourly rate from $150 to $175 per hour - The court noted that if the lawyer spent more time on the file than allowed, it was his own fault for failing to keep accurate time records. Search aid - MLB Key No. - Barristers and Solicitors Topic 3303 is assigned to cases that consider the compensation due to a lawyer and the relevant considerations is fixing the bill. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.20 Negligence, general In the case of Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R. 321 (S.C.C.), the headnote stated: The Supreme Court of Canada stated that a solicitor must bring reasonable care, skill and knowledge to his work - A solicitor is not required to know all the law applicable to a particular legal task without need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points - See paragraphs 58 to 59. In the case of Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), the headnote stated: The Alberta Court of Appeal stated that a lawyer is required to exercise the standard of care of the reasonably competent member of his profession similarly situated in the discharge of his retainer. - See paragraph 12. Search aid - MLB Key No. - Barristers and Solicitors Topic 2501 is assigned to cases that consider the standard of care required of a lawyer in a negligence case. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.21 Negligence, settlements In the case of Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), the headnote stated: A lawyer acting on behalf of an injured worker and the Workers' Compensation Board (subrogated claim) recommended settlement of the claim for $70,000 without reviewing current damage awards and without considering all heads of damages, including past lost income, cost of future care and prejudgment interest - The Alberta Court of Appeal affirmed that the lawyer was negligent. Search aid - MLB Key No. - Barristers and Solicitors Topic 2587 is assigned to cases that consider whether a lawyer was negligent respecting a settlement. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.22 Negligence, basis of liability In the case of Hall v. Bennett Estate et al. (2003), 171 O.A.C. 182 (C.A.), the headnote stated: The Ontario Court of Appeal stated that “while the Rules of Professional Conduct may inform a court's decision on the questions of duty and standard of care, they do not, in and of themselves, create legal duties that found a basis for civil liability. The question of whether a duty of care arises in a negligence action is one that must be determined according to general principles of tort law - See paragraph 62. In the case of Baldwin v. Chalker (1984), 48 Nfld. & P.E.I.R. 86; 142 A.P.R. 86 (Nfld. C.A.), the headnote stated: The Newfoundland Court of Appeal affirmed that where a solicitor is in breach of a duty to a client by failing to exercise that degree of care and skill expected of a reasonably prudent solicitor an action lies in both contract and tort - See paragraph 6. See MacDonald Estate v. Martin (1990), 121 N.R. 1; 70 Man.R.(2d) 241 (S.C.C.), at para. 52. See also Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109 (S.C.C.). Search aid - MLB Key No. - Barristers and Solicitors Topic 2502 is assigned to cases that consider the basis of a lawyer’s liability in negligence. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.23 Negligence versus error of judgment In the case of Anastasakos v. Allen (1996), 16 O.T.C. 413 (Gen. Div.), the court stated at para. 7: [7] These facts cannot support a finding of negligence. The law with respect to solicitor's negligence in the conduct of a trial is well settled. While the courts will not go so far as to grant absolute immunity to a barrister for the conduct of litigation, negligence will not be found on decisions based on the exercise of judgment, of which there are many during the course of a trial. There must be egregious error . I agree with Mr. Justice Krever that it would be very rare to hold that a decision made by counsel during a trial was negligence as opposed to an error in judgment: Demarco v. Ungaro (1979), 21 O.R.(2d) 673 (H.C.). In fact, the decision here seems to be no error in judgment at all. The only basis for saying otherwise is that at the second trial, the witnesses were called and the plaintiff was acquitted. However, the judge's charge was also without the error. In the case of Grand Anse Contracting Ltd. v. MacKinnon (1993), 121 N.S.R.(2d) 423; 335 A.P.R. 423 (T.D.), the headnote stated: A client sued a lawyer for damages for failing to properly conduct the defence of an action - The Nova Scotia Supreme Court, Trial Division, stated that the lawyer's conduct, to constitute negligence in such circumstances, must extend appreciably beyond the realm of an error of judgment and that liability should be imposed only for egregious errors of judgment (see paragraph 15). Search aid - MLB Key No. - Barristers and Solicitors Topic 2542 is assigned to cases that consider negligence versus an error of judgment. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 4.24 Negligence, considerations in determining liability In the case of Duncan v. Cuelenaere (1986), 56 Sask.R. 230 (Q.B.), the headnote stated: The Saskatchewan Court of Queen's Bench stated that the considerations to be applied in determining the negligence of a solicitor include: the sophistication of the client; the experience and training of the solicitor; the form and nature of the client's instructions; the specificity of those instructions; the nature of the action or legal assignment; the precautions one would expect a solicitor acting prudently and competently to take; the course of the proceeding or assignment; and the influence of other factors beyond the control of the client and advisor - See paragraph 7. Search aid - MLB Key No. - Barristers and Solicitors Topic 2505 is assigned to cases that consider the considerations in determining liability for negligence. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 5 - The lawyer’s duty to other lawyers Overview: The lawyer’s relation to other lawyers is important to the administration of justice. This is because most civil claims are settled without a trial and a substantial number of criminal charges result in a guilty plea without a trial. Lawyers interacting with other lawyers produce out of court settlements in both criminal and civil cases. .......................................................................... 5.1 General and notice of default proceedings In the case of Thomas v. Keddy Motor Inns Ltd. (1992), 117 N.S.R.(2d) 420; 324 A.P.R. 420 (T.D.), the court referred to the duty of lawyers to act toward other lawyers with courtesy and good faith. The court stated at paras. 13 and 14: [13] Counsel for the applicants, has brought to my attention the provision in the codified standard of ethics and practice, a code which applies to all members of the legal profession in Nova Scotia. Legal Ethics and Professional Conduct is the published standard of conduct adopted by the Nova Scotia Barristers’ Society in 1990. Chapter 13 of that booklet deals with the practitioner's duties to other lawyers. The general rule is a lawyer has a duty to treat and deal with other lawyers courteously and in good faith. Some of the commentary on that rule reads as follows: 13.3 A lawyer has a duty to accede to a reasonable request for a trial date, an adjournment, a waiver of procedural formality and any similar matter that does not prejudice the rights of the client. A lawyer who knows that another lawyer has been consulted in a matter has a duty not to proceed by default in the matter without enquiry and warning. This standard is consistent with the expectation of the court in these circumstances. [14] Due to her earlier waiver of the time to file the defence, plaintiff's counsel should have issued a warning in these circumstances that she expected a defence to be filed by a specific date, a date which would provide defendants' counsel a reasonable opportunity to prepare and file a defence. Because of that failure, it is appropriate that I exercise my discretion under rule 12.06 and set aside the default judgment. I also believe that counsel, in a situation where they have had dealings with opposing counsel, should not proceed with an ex parte default application without giving notice to opposing counsel. Search aid - MLB Key No. - Barristers and Solicitors Topic 4009 is assigned to cases that consider the duty of a lawyer to another lawyer when signing default judgment. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 5.2 Requirement of courteous conduct In the case of 615231 Saskatchewan Ltd. v. Schulz et al. (2002), 220 Sask.R. 43 (Q.B.), the headnote stated: An applicant brought an ex parte application for leave to serve a notice of motion on the respondents requesting a summary order for possession of a condominium (Recovery of Possession of Land Act (Sask.), s. 3(1)) - It appeared from the applicant's supporting affidavit that the respondents were likely represented by counsel - Queen's Bench Rule 441A(c) required disclosure of legal counsel by an ex parte applicant - The Saskatchewan Court of Queen's Bench refused to grant leave without at least some form of short notice to the respondents' counsel given the spirit and intent of rule 441A - Professional courtesy required that counsel for an applicant provide some form of notice where it appeared that a respondent was represented by counsel - Counsel should bring an ex parte application against a party who was known to be represented by another lawyer only in exceptional circumstances - See paragraphs 2, 9 and 10. Search aid - MLB Key No. - Barristers and Solicitors Topic 4005 is assigned to cases that consider the duty of courtesy by a lawyer to another lawyer. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 5.3 Duty of successor lawyer to protect an outstanding account of the former lawyer In the case of Franklin Service Co. v. Halifax (1977), 20 N.S.R.(2d) 306; 27 A.P.R. 306 (T.D.), the headnote stated: The Nova Scotia Supreme Court, Trial Division, stated that it is proper and necessary for a successor lawyer to insist that the client take reasonable steps to secure an outstanding account of a former lawyer - See paragraph 23 - The Trial Division stated that while circumstances may make it unreasonable for a successor lawyer to insist upon payment of the outstanding account of a former lawyer, that the successor lawyer may properly insist that security be given by the client for payment of the former lawyer's account - See paragraph 25. Search aid - MLB Key No. - Barristers and Solicitors Topic 4067 is assigned to cases that consider the duty of a lawyer to protect the outstanding account of a former lawyer. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 5.4 Undertakings to other lawyers, enforcement In the case of Regatta Investments Ltd. and Thullner v. Haig et al. (1985), 36 Man.R.(2d) 154 (Q.B.), the court stated at paras. 9 to 11: [9] There is no question that the court does have inherent jurisdiction to enforce a solicitor's undertaking. See Raman v. Him, [1980] A.C. 497, a decision of the Privy Council in England. [10] There is also authority for the proposition that trust conditions imposed by one solicitor and accepted by the other, will be equated to an undertaking by the latter to comply with the conditions, unless those conditions are rejected by the receiving solicitor. See Witten, Vogel, Binder & Lyons v. Leung, Harwardt and MacPherson (1983), 46 A.R. 53; 148 D.L.R.(3d) 418 (Q.B.). [11] Moreover, the performance of a solicitor's undertaking may be enforced summarily. See Geoffrey Silver v. Baines, [1971] 1 All E.R. 473, per Denning, M.R., at p. 475 as follows: This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office ... This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertakings. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings. It may be a simple undertaking to pay money, provided always that it is given 'in his capacity as a solicitor' ... If such an undertaking is given, the court may summarily make an order on the solicitor to fulfil his undertaking ... and, if he then fails to do so, the court may commit him to prison ... This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case. Search aid - MLB Key No. - Barristers and Solicitors Topic 4151 is assigned to cases that consider the enforcement of undertakings made to other lawyers. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 6 - The lawyer and the law society Overview: The practicing lawyer is required to follow the rules and guidelines of the law societies. The practicing lawyer must be especially careful when handling a client’s money. Some law societies have enacted detailed rules respecting client’s funds in trust accounts and the handling of large sums received from clients. The law societies are also empowered to determine what constitutes professional misconduct. ........................................................................ 6.1 Powers of law societies In the case of First Canadian Title Co. v. Law Society of British Columbia, [2004] B.C.T.C. 197 (S.C.), the court stated at paras. 21 and 22: [21] In this province, the legal profession is self-governed. In s. 3 of the Legal Profession Act the Legislature entrusted to the Law Society, not to the courts, the responsibility of regulating and supervising the professional conduct of its members. The Law Society fulfills that mandate by establishing standards and by regulating the practice of law, and it contends that, as the profession's governing body, it must insist upon the adherence of its members to a common denominator of good conduct that satisfies its own standards as well as the demands of the clients and the community which the profession serves. [22] In Young v. Young (1990), 50 B.C.L.R. (2d) 1 (C.A.), Cumming J.A., observed, at p. 68: This court has recognized that the benchers are responsible for determining what is, and what is not, professional misconduct, and has held that the courts ought to be reluctant to interfere in that determination. In the case of Klein and Dvorak v. Law Society of Upper Canada (1985), 8 O.A.C. 161 (Div. Ct.), the headnote stated: Lawyer-press relations - The Ontario Divisional Court held that the Law Society of Upper Canada had no right to prohibit lawyers from initiating contact with news media, because Rule 13, commentary 18 of the Rules of Professional Conduct was of no force and effect as contravening the right to freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms - See paragraphs 43 to 48. In the case of Stewart, McKelvey v. Nova Scotia Barristers Society (2005), 236 N.S.R.(2d) 327; 749 A.P.R. 327 (S.C.), the headnote stated: The Complaints Investigation Committee (CIC) of the Nova Scotia Barristers' Society subpoenaed documents from a lawyer - At issue was whether the CIC was entitled to access documents which were or might be subject to solicitor-client privilege where the client had objected to the lawyer, or law firm, disclosing privileged documents to the CIC - The Nova Scotia Supreme Court held that the lawyer was obliged to provide the material and in so doing was deemed not to have breached any privilege of his client (Legal Professions Act, ss. 77(1), 77(3) and 77(4)) - If there were gaps in the legislation, public policy considerations required that the information requested had to be provided so as to allow the Society to continue its investigation - The duty to provide the requested information was inherent in the solicitor's obligation to self report and provide information necessary to conduct the type of investigation required to maintain public confidence and to allow the Society to fulfill its purpose as set out in the legislation. Search aid - MLB Key Nos. - Barristers and Solicitors Topic 7641 and Topic 7659 are assigned to cases that consider the powers of the law societies. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 6.2 Discipline In the case of Rowenbaum v. Manitoba Law Society (1983), 25 Man.R.(2d) 154 (C.A.), the headnote stated: Jurisdiction of disciplinary body - The Manitoba Court of Appeal affirmed that the Law Society of Manitoba had jurisdiction to decide if a lawyer was guilty of professional misconduct where the lawyer, as a defendant in another action, lied to the court - See paragraph 1. In the case of Krieger et al. v. Law Society of Alberta (2002), 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275 (S.C.C.), the headnote stated: Jurisdiction of disciplinary body - The prosecutor in a murder case failed to disclose relevant information - The accused filed a complaint with the Law Society - The prosecutor challenged the Society's jurisdiction - The Supreme Court of Canada held that the Law Society had jurisdiction to review an allegation that a prosecutor acted dishonestly or in bad faith in failing to disclose information - The province had jurisdiction to regulate the legal profession (Constitution Act, 1867, s. 92(13) (property and civil rights)) - Since prosecutors must be members of the Law Society, they were subject to the Society's Code of Professional Conduct - The court stated that all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but, rather, is a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information - See paragraphs 1 to 60. In the case of Pearlman v. Manitoba Law Society Judicial Committee (1991), 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81 (S.C.C.), the headnote stated: Jurisdiction of disciplinary body - A lawyer who owned several houses in Winnipeg was ordered by the City to make repairs - The lawyer wrote a number of letters to a city building inspector threatening both civil and criminal action - He also warned the inspector to stay off his property - In a related court action the solicitor was ordered to pay $1,500 in costs to the building inspector, but refused to do so - The Supreme Court of Canada affirmed that the Law Society had jurisdiction to determine whether the solicitor's actions constituted conduct unbecoming a solicitor - See paragraph 25. In the case of Trumbley and Pugh et al. v. Toronto Police Force et al. (1986), 15 O.A.C. 279 (C.A.), the headnote stated: The Ontario Court of Appeal commented that the rights guaranteed by s. 11 of the Charter did not apply to discipline proceedings under the Law Society Act (Ont.), because a person charged with a disciplinary offence is not charged with an offence within the meaning of s. 11 of the Charter - See paragraph 77. Search aid - MLB Key Nos. - Barristers and Solicitors Topic 5101 and Topic 5182 are assigned to cases that consider the discipline of lawyers by a law society. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 6.3 Professional misconduct defined In the case of Yake v. Law Society of Alberta (1997), 209 A.R. 59; 160 W.A.C. 59 (C.A.), the headnote stated: Yake represented a client respecting her motor vehicle accident claim - His client disagreed with a portion of her doctor's medical/legal report - Yake removed a paragraph from the report before forwarding it to the defendant's insurer - The Hearing Committee of the Law Society of Alberta found Yake guilty of professional misconduct - The Benchers of the Law Society upheld the finding, but reduced the penalty from a four month suspension to a two month suspension - Yake appealed the finding and the sentence - The Alberta Court of Appeal dismissed the appeal In the case of Law Society of British Columbia v. Heringa (2004), 195 B.C.A.C. 198; 319 W.A.C. 198 (C.A.), the headnote stated: A lawyer failed for five years to comply with an undertaking to discharge a mortgage from the title of property purchased by his clients - The British Columbia Court of Appeal affirmed that the lawyer was guilty of professional misconduct - The court affirmed that undertakings were solemn promises to be accorded the most urgent and diligent attention - The lawyer's cavalier attitude toward the fulfilment of his undertaking obligation had no place in the practice of law. In the case of Law Society of British Columbia v. Ewachniuk (2003), 181 B.C.A.C. 110; 298 W.A.C. 110 (C.A.), the headnote stated: A hearing panel appointed by the Discipline Committee of the Law Society found a lawyer guilty of professional misconduct in (1) attempting to intimidate and in actually intimidating two American witnesses from giving evidence at a B.C. trial, and (2) requesting Crown counsel to lay charges against these witnesses to prevent them from coming to Canada to give evidence - The British Columbia Court of Appeal affirmed the finding, stating that the panel's findings were not unreasonable, contrary to the overwhelming weight of the evidence or based on an erroneous assumption or inference - See paragraphs 23 to 32. In the case of Harris v. Nova Scotia Barristers Society (2004), 228 N.S.R.(2d) 153; 723 A.P.R. 153 (C.A.), the headnote stated: An adjudicative hearing panel of the Discipline Committee of the Nova Scotia Barristers' Society found Harris guilty of professional misconduct for (1) failing to prepare monthly trust reconciliations, maintain adequate books of original entry, maintain a chronological file of copies of billings and file a required Form 20 on time contrary to the Society's trust account regulations and (2) demonstrating a continued reckless disregard of the Society's trust account regulations - The panel reprimanded Harris for professional misconduct - There was no suggestion that she had misappropriated money from her trust account - The Nova Scotia Court of Appeal refused to interfere with the panel's finding - See paragraphs 139 to 161. In the case of Ayres v. Nova Scotia Barristers' Society (1998), 169 N.S.R.(2d) 315; 508 A.P.R. 315 (C.A.), the headnote stated: A lawyer was found guilty of professional misconduct by the Nova Scotia Barristers' Society for (1) making disparaging and abusive remarks about other lawyers; (2) surreptitiously tape-recording a client conversation; (3) charging clients unreasonable and excessive fees; (4) seeking business in a manner contrary to the public interest and integrity and dignity of the profession; and (5) attempting to dissuade a client, a material witness under subpoena, from testifying against her - The penalty imposed was suspension from practice for a minimum of six months or until the lawyer was adjudged medically and psychologically fit to practise, payment of $100,000 towards the cost of the inquiry and the taking of two professional training courses in skills training and responsibilities - Nonpayment of the costs order would result in disbarment - The Nova Scotia Court of Appeal dismissed the lawyer's appeal against the finding of professional misconduct and the penalty imposed - Absent an error of law on the face of the record or a breach of the rules of natural justice, the court could not interfere with the self-governing body's disciplinary decision. In the case of Nova Scotia Barristers' Society v. Saunders (1982), 55 N.S.R.(2d) 1; 114 A.P.R. 1 (C.A.), the headnote stated: The Nova Scotia Court of Appeal affirmed a decision that a lawyer's failure to respond to the Barristers' Society's correspondence regarding complaints against the lawyer, constituted professional misconduct or conduct unbecoming a barrister - See paragraphs 1 to 3. In the case of Spring v. Law Society of Upper Canada (1988), 28 O.A.C. 375 (Div. Ct.), the headnote stated: The Ontario Divisional Court affirmed the disbarment of a lawyer for professional misconduct and conduct unbecoming a solicitor, where the lawyer lied to or misled clients, other solicitors and the Law Society's auditor, misapplied mortgage funds and swore falsely in an affidavit and in oral testimony - See paragraphs 16 to 17. In the case of Adams v. Law Society of Alberta (2000), 266 A.R. 157; 228 W.A.C. 157 (C.A.), the headnote stated: The Hearing Committee of the Law Society of Alberta disbarred Adams after his conviction for sexual exploitation of his 16-year- old client - The Benchers of the Law Society affirmed the decision - Adams appealed - He argued that the Hearing Committee over- emphasized the harm to the reputation of the legal profession; failed to accord sufficient weight to good character evidence; erred in rejecting expert evidence as to the risk of Adams' re- offending; erred in relying on aggravating factors that were not proven; and finally, imposed a penalty that was a marked departure from penalties imposed on similar offenders for similar offences, and was manifestly unreasonable - The Alberta Court of Appeal dismissed the appeal. In the case of Adams v. Law Society of Alberta (1988), 88 A.R. 313 (C.A.), the headnote stated: A lawyer was found guilty of four charges of conduct unbecoming a barrister and solicitor - The Law Society rejected the lawyer's submission that the misconduct was caused by incompetence - Therefore, disbarment was a possible disciplinary penalty - The lawyer deliberately deceived a client by forging a letter, preparing a document purporting to be a Federal Court order, affixing a Federal Court of Canada seal to the document, and lying to the disciplinary committee by blaming a secretary - The Alberta Court of Appeal affirmed the penalty of disbarment, where the misconduct was a serious affront to the integrity of the profession and the rights of clients. In the case of Chopra v. Law Society of Alberta (1988), 88 A.R. 312 (C.A.), the headnote stated: A lawyer swore and filed a false affidavit on an appeal from a taxation of an account - The Alberta Court of Appeal affirmed the Law Society's imposition of a 30 day suspension plus an order requiring the lawyer to pay the $3,500.00 costs of the disciplinary hearing. In the case of Segal v. Law Society of Saskatchewan (1999), 189 Sask.R. 134; 216 W.A.C. 134 (C.A.), the headnote stated: The Discipline Committee of the Law Society of Saskatchewan found Segal guilty of conduct unbecoming a lawyer - The Committee ordered that Segal be suspended for 45 days with respect to a client entering into an unfair contingency agreement under duress and suspended for 15 days for two complaints of intentionally misleading other persons - The 15 day suspensions were concurrent to each other, but consecutive to the 45 day suspension - He also received a reprimand for attempting to have a discipline charge withdrawn - Segal was also ordered to pay the costs of the hearing - The Saskatchewan Court of Appeal affirmed the sanctions, but reduced the amount of costs that Segal was ordered to pay. In the case of Wasylyshen v. Law Society of Saskatchewan (1985), 39 Sask.R. 187 (C.A.), the headnote stated: A lawyer represented to the law society that a client's trust account which was debited or overdrawn had been corrected when in fact such was not done until later - The lawyer could have, but did not, promptly advise the society of the misinformation - The Saskat-chewan Court of Appeal affirmed, inter alia, a two- month suspension from practice - See paragraphs 11 to 15. In the case of MacIsaac, Re (1983), 22 Sask.R. 10 (C.A.), the headnote stated: A lawyer received monies in trust on the condition that he would immediately pay the arrears owing on a mortgage - He failed to do so, indirectly because of his interest in the property - The Saskatchewan Court of Appeal affirmed the lawyer's 30 day suspension from practice for professional misconduct - See paragraphs 21 to 24. In the case of Lamontagne v. Law Society of Saskatchewan (1991), 89 Sask.R. 219 (C.A.), the headnote stated: The discipline committee of the Law Society made 11 allegations of conduct unbecoming against a lawyer - Allegations included trust account violations, violation of a trust condition, professional discourtesy, failure to pay for professional services - Accused admitted to the allegations - He admitted addiction to drugs and alcohol and voluntarily entered a rehabilitation program - Nine months' suspension pending hearing - The discipline committee suspended him for two years' followed by two years' probation - The Saskatchewan Court of Appeal reduced suspension to one year and varied conditions of probation - See paragraphs 4 to 16. In the case of Hatfield v. Nova Scotia Barrister Society (1978), 30 N.S.R.(2d) 386; 49 A.P.R. 386 (C.A.), the headnote stated: A lawyer improperly used trust funds in breach of the Barristers and Solicitors Act Regulations - The Nova Scotia Court of Appeal affirmed the imposition of a fine of $1,000 - See paragraphs 26, 61 and 69. Search aid - MLB Key Nos. - Barristers and Solicitors Topic 5106 and Topic 5304 and Topic 5385 and Topic 5486 are assigned to cases that define professional misconduct. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 6.4 Law society rules, guidelines, etc. In the case of Bank of Monteal v. Dresler (2002), 253 N.B.R.(2d) 37; 660 A.P.R. 37 (C.A.), the headnote stated: The New Brunswick Court of Appeal stated that It is important to recognize that the courts are not bound by the Law Society's rules and guidelines, no matter how clearly worded. It remains the prerogative of the former to exercise their supervisory (common law) jurisdiction in a manner inconsistent with a law society standard or rule. ... such rules do not have the same legal effect as a statute or regulation. - However, the court also recognized that the Supreme Court of Canada had stated that rules set by a professional body are of guiding importance in determining the nature of the duties flowing from a particular professional relationship - See paragraphs 45 to 47. Search aid - MLB Key No. - Barristers and Solicitors Topic 7608 is assigned to cases that consider the law society practice notes, rules, guidelines, etc. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 7 - The Prosecutor Overview: The prosecutor represents the people or the Crown and should have no interest other than to see that justice is done. The prosecutor’s pre-eminent duty is to the state - see Professional Conduct for Lawyers and Judges by Beverley G. Smith, at chapter 8, para. 13. 7.1 Role of In the case of Nelles v. Ontario (1989), 98 N.R. 321; 35 O.A.C. 161 (S.C.C.), the Supreme Court of Canada stated at paras. 38 and 39: [38] Historically the Attorney General's role was that of legal adviser to the Crown and to the various departments of government. More specifically the principal function was and still is the prosecution of offenders. The appointment of Crown Attorneys as agents of the Attorney General, arose from the increasing difficulty of the Attorney General to attend effectively to all of his duties amid increases in population, and the expansion of settlement. [39] The office of the Crown Attorney has as its main function the prosecution of and supervision over indictable and summary conviction offences. The Crown Attorney is to administer justice at a local level and in so doing acts as agent for the Attorney General. Traditionally the Crown Attorney has been described as a minister of justice and ought to regard himself as part of the court rather than as an advocate . (Morris Manning, Abuse of Power by Crown Attorneys, [1979] L.S.U.C. Lectures 571, at p. 580, quoting Henry Bull, Q.C.) As regards the proper role of the Crown Attorney, perhaps no more often quoted statement is that of Rand, J., in Boucher v. R., [1955] S.C.R. 16, at pp. 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a 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 efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. Search aid - MLB Key No. - Barristers and Solicitors Topic 1802 is assigned to cases that consider the role of the prosecutor. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 7.2 Duties of prosecutor In the case of R. v. Hauser (1977), 7 A.R. 89 (C.A.), the Alberta Court of Appeal stated at paras. 16 and 17: [16] This function of the Attorney General is considered in a recent decision of the House of Lords in Attorney General v. Gouriet; Post Office Engineering Union v. Gouriet; Union of Post Office Workers v. Gouriet, [1977] 3 W.L.R. 300. The facts were that Mr. Gouriet as a citizen complained that the Post Office employees were detaining or delaying postal packets or messages between England and South Africa, and Gouriet applied for an Injunction to restrain the employees. The Attorney General had not consented to the proceedings, and took the position that Mr. Gouriet had no status in the Court, The Court of Appeal for England, in effect, said that if the Attorney General would not do his duty and consent to proceedings to prevent a breach of the nation's law, the Court could, on the application of a citizen, intervene. [17] The matter went to the House of Lords, where the decision of the Court of Appeal was overruled, but in the course of that decision, some observations which are germane to the matters at hand, and which relate to the function of the Attorney General are made. Viscount Dilhorne said that at P. 319: The Attorney General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the Courts. In the case of R. v. Burns (D.R.) (1993), 136 N.B.R.(2d) 166; 347 A.P.R. 166 (C.A.), the New Brunswick Court of Appeal stated: [13] The duties of a prosecutor have been repeated time and time again, but every now and then, they are unfortunately overlooked to the detriment of a proper and fair administration of criminal justice. The case of R. v. Boucher, [1954] S.C.R. 16; 110 C.C.C. 263, is still the leading case which reviews these duties. In the present case, it was the duty of Crown counsel to assist the judge in seeing that the evidence, not only of his own witnesses, but those of the defence be presented before the court in a fair and impartial manner. The prosecutor is not the advocate of the complainant, but a public officer whose duty extends to all citizens, including the accused.  Search aid - MLB Key No. - Barristers and Solicitors Topic 1803 is assigned to cases that consider the duties of the prosecutor. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 7.3 Standard of conduct In the case of R. v. Chan (A.H.) (2003), 334 A.R. 374 (Q.B.), the headnote stated: The Crown preferred a direct indictment against several accused - The accused intended to seek a stay of proceedings, alleging abuse of process based on prosecutorial misconduct, or to move to quash the direct indictment based on an improper exercise of the Attorney General's discretion in consenting to the indictment - The accused sought disclosure of correspondence between local Crown counsel and the Minister of Justice's office and associated internal memoranda related to the preferment of the indictment - The Alberta Court of Queen's Bench held that the accused had to meet a threshold requirement of a credible showing of flagrant impropriety before the court could enter into an abuse hearing based on prosecutorial misconduct or judicial review of the Attorney General's preferment of the indictment - The accused's evidence did not raise a tenable allegation of mala fides or a credible showing of impropriety on the part of the Crown or the Attorney General - Therefore, an assessment of the documents' relevance was premature - See paragraphs 20 to 35. In the case of R. v. F.S. (2000), 130 O.A.C. 41 (C.A.), the headnote stated: The accused appealed his convictions on several sexual offences against his stepdaughter - The Ontario Court of Appeal allowed the appeal and ordered a new trial where Crown counsel's conduct seriously prejudiced the accused - He personalized his role and injected his own credibility and belief into the case - His stated goal was to obtain a conviction and justice for the complainant - He was inappropriately sarcastic, flippant and disrespectful to the accused - His conduct was not moderate and impartial but improper and unfair - He also improperly attacked the accused's credibility - He improperly misrepresented the accused's evidence to the jury and the trial judge endorsed the misstatement - He invited the accused to explain why the complainant would make up the allegations then ridiculed the explanation - He also improperly asked the accused whether the complainant was a known liar - See paragraphs 10 to 29. In the case of R. v. Balchand (O.) (2001), 155 O.A.C. 132 (C.A.), the headnote stated: The accused was charged with murdering Vickram's wife - Defence counsel's line of attack was designed to implicate Vickram as the killer - The Ontario Court of Appeal held that it was wrong for Crown counsel to focus on this line of attack and use it to portray the accused as a person without conscience, who would deliberately implicate an innocent man to save herself - It was also wrong for Crown counsel to place the accused in the position of having to call the police liars where her evidence differed from their evidence. Search aid - MLB Key No. - Barristers and Solicitors Topic 1804 is assigned to cases that consider the standard of conduct of the prosecutor. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 7.4 Conflict of interest In the case of R. v. Lindskog (K.B.) (1997), 159 Sask.R. 1 (Q.B.), the headnote stated: The accused was charged with sexual assault - The Crown prosecutor, Ritter, had represented the accused on a theft charge in 1993 when Ritter was a legal aid lawyer - The Saskatchewan Court of Queen's Bench held that Ritter had a disqualifying conflict of interest that amounted to a breach of the accused's right to a fair trial under ss. 7 and 11(d) of the Charter - However, the court held that the appropriate remedy was not to order a stay, but rather to remove Ritter as Crown counsel - Ritter had obtained information about the accused's background and character and it would be an obvious conflict of interest for him to cross-examine the accused if the accused elected to testify - See paragraphs 37 and 38. Search aid - MLB Key No. - Barristers and Solicitors Topic 1805 is assigned to cases that consider conflict of interest of the prosecutor. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 7.5 Duty to call witnesses In the case of R. v. Franks (1991), 4 B.C.A.C. 72; 9 W.A.C. 72 (C.A.), the headnote stated: The British Columbia Court of Appeal stated that a prosecutor has a discretion to determine who should be called to testify for the Crown - The court added that it should not interfere with that discretion unless it be shown that the prosecutor has been influenced by some oblique or improper motive in the exercise of his discretion - See paragraph 13. Search aid - MLB Key No. - Barristers and Solicitors Topic 1806 is assigned to cases that consider the duty of the prosecutor to call witnesses. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. Chapter 8 - The Defence Lawyer Overview: Unlike a prosecutor, a criminal defence lawyer has a client. Such a lawyer-client relationship is subject to the usual rights, duties and liabilities. The defence lawyer must be aware of the potential conflict between his duty to his client and the defence lawyer’s duty to the court and the justice system. Unlike the burden of proof in a civil trial, in a criminal trial the accused is presumed innocent.  8.1 Extent or limits of duty In the case of R. v. Dunn (P.I.) (1993), 143 A.R. 238 (Prov. Ct.), the headnote stated: Extent or limits of duty - The Alberta Provincial Court discussed the duty of defence counsel in criminal court - The court stated that an accused's fundamental freedoms do not prevent counsel from advising a client to plead guilty once it is clear that the Crown's evidence is overwhelming - Counsel's duty to a client is balanced against his other four duties, namely, his duty of integrity to himself, his duty to deal fairly with opposing counsel and the court, and his duty not to abuse the trust of society which designed a criminal justice system to give every possible presumption of innocence and fairness to accused persons - See paragraph 5. Search aid - MLB Key No. - Barristers and Solicitors Topic 1544 is assigned to cases that consider the the extent of the duty owed to a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue. 8.2 The defence lawyer, termination of relationship In the case of R. v. Huber (E.E.) (2004), 192 B.C.A.C. 75; 315 W.A.C. 75 (C.A.), the headnote stated: Termination of relationship - Withdrawal by lawyer - General - The