LSO Barrister Ethics 2 — Questions and Answers
Question 1: What is the duty of 'civility' in legal practice and what are the consequences of incivility?
- Civility is merely a suggestion, not an obligation
- The Rules of Professional Conduct require lawyers to treat all persons involved in the legal process with courtesy, civility, and good faith; incivility can result in costs awards, disciplinary proceedings, and judicial sanctions (Correct answer)
- Civility only applies in the courtroom
- Incivility has no professional consequences
Correct answer: The Rules of Professional Conduct require lawyers to treat all persons involved in the legal process with courtesy, civility, and good faith; incivility can result in costs awards, disciplinary proceedings, and judicial sanctions
Civility is a professional obligation, not merely good manners. The Rules require lawyers to be courteous, civil, and act in good faith with all persons in the legal process — including opposing counsel, parties, witnesses, court staff, and the judiciary. Incivility can result in: costs sanctions from the court, complaints to the LSO, disciplinary proceedings, and damage to the lawyer's reputation. Several Ontario decisions have imposed costs for uncivil conduct.
Question 2: What are a lawyer's obligations regarding 'money laundering' and 'terrorist financing' in Ontario?
- Lawyers have no obligations regarding money laundering
- Lawyers must not assist in illegal transactions, must verify client identity and sources of funds, and should be vigilant for red flags of money laundering, though lawyers in private practice are currently exempt from FINTRAC reporting requirements due to solicitor-client privilege concerns (Correct answer)
- Lawyers must report all large cash transactions to FINTRAC
- These obligations only apply to lawyers who practice criminal law
Correct answer: Lawyers must not assist in illegal transactions, must verify client identity and sources of funds, and should be vigilant for red flags of money laundering, though lawyers in private practice are currently exempt from FINTRAC reporting requirements due to solicitor-client privilege concerns
While lawyers are currently exempt from FINTRAC reporting requirements (due to the Federation of Law Societies' successful Charter challenge based on solicitor-client privilege), they are not exempt from the substantive obligation to avoid facilitating money laundering. The LSO's 'no cash' rule prohibits receiving more than $7,500 in cash for any one client matter. Lawyers must verify client identity, be alert to red flags, and decline retainers where they suspect illegal activity.
Question 3: What is the lawyer's duty regarding 'supervision' of non-lawyer employees and paralegals?
- Lawyers have no responsibility for the work of their staff
- Lawyers must directly supervise all non-lawyer staff and paralegals, ensuring their work meets professional standards, that client confidentiality is maintained, and that non-lawyers do not provide legal advice or appear to be lawyers (Correct answer)
- Only partners have supervisory duties
- Paralegals are fully independent and do not require supervision
Correct answer: Lawyers must directly supervise all non-lawyer staff and paralegals, ensuring their work meets professional standards, that client confidentiality is maintained, and that non-lawyers do not provide legal advice or appear to be lawyers
Lawyers bear professional responsibility for their staff's conduct. The duty includes: ensuring non-lawyers are competent for their assigned tasks, providing adequate supervision, ensuring client confidentiality is maintained, preventing unauthorized practice of law, and taking appropriate action if staff misconduct occurs. The lawyer is ultimately responsible for the quality of work produced by their team. For paralegals, the LSO has separate regulatory requirements.
Question 4: What is the significance of the 'Groia decision' (Groia v Law Society of Upper Canada, 2018) for the relationship between advocacy and civility?
- It held that civility always overrides zealous advocacy
- The SCC held that the LSO's finding of professional misconduct against a criminal defence lawyer for in-court incivility was unreasonable, establishing that lawyers must have latitude for resolute advocacy and that allegations of prosecutorial misconduct are part of legitimate defence advocacy (Correct answer)
- It eliminated all civility requirements for lawyers
- It only applies to criminal defence lawyers
Correct answer: The SCC held that the LSO's finding of professional misconduct against a criminal defence lawyer for in-court incivility was unreasonable, establishing that lawyers must have latitude for resolute advocacy and that allegations of prosecutorial misconduct are part of legitimate defence advocacy
In Groia v LSUC (2018), the SCC (5-2) found that the LSO's discipline of criminal defence lawyer Joseph Groia for uncivil conduct during the Felderhof trial was unreasonable. The decision established that: (1) lawyers must have wide latitude for zealous advocacy; (2) in-court conduct must be assessed in context; (3) good faith allegations of opposing counsel's misconduct are part of legitimate advocacy; (4) the civility standard cannot be so rigid as to chill vigorous defence advocacy, particularly in criminal cases.
Question 5: What are a lawyer's obligations when leaving a firm regarding client files and ongoing matters?
- The lawyer takes all clients and files automatically
- The lawyer must ensure continuity of client service, protect client interests during the transition, maintain client confidentiality about firm matters, give clients the choice of which lawyer to retain, and handle file transfers in accordance with the Rules of Professional Conduct and any partnership agreement (Correct answer)
- Clients belong to the firm, not the lawyer
- The lawyer has no obligations regarding transition of client matters
Correct answer: The lawyer must ensure continuity of client service, protect client interests during the transition, maintain client confidentiality about firm matters, give clients the choice of which lawyer to retain, and handle file transfers in accordance with the Rules of Professional Conduct and any partnership agreement
The transitioning lawyer must: (1) notify affected clients of the departure; (2) give clients the choice of remaining with the firm or following the lawyer (clients are not 'property' of the firm); (3) protect client confidentiality during and after the transition; (4) ensure ongoing matters are not prejudiced; (5) cooperate in transferring files as directed by clients; (6) comply with any partnership or employment agreement provisions (subject to fiduciary duties). The paramount concern is the clients' interests.
Question 6: What is the LSO's 'Statement of Principles' requirement and what controversy has it generated?
- It requires lawyers to pledge allegiance to the Queen
- It required licensees to acknowledge an obligation to promote equality, diversity, and inclusion in their professional activities — it was revoked in 2019 after significant controversy about compelled speech and freedom of conscience (Correct answer)
- It is a mandatory oath taken upon admission to the bar
- It requires all lawyers to maintain professional liability insurance
Correct answer: It required licensees to acknowledge an obligation to promote equality, diversity, and inclusion in their professional activities — it was revoked in 2019 after significant controversy about compelled speech and freedom of conscience
The Statement of Principles (adopted 2017) required all LSO licensees to create and adopt a personal statement acknowledging their obligation to promote equality, diversity, and inclusion. It generated significant controversy: supporters argued it promoted necessary cultural change; opponents argued it constituted compelled speech that violated freedom of conscience. After a contested bencher election, the requirement was revoked in 2019. The debate highlighted tensions between professional regulation and individual rights.
LSO Barrister Ethics 2
What is the duty of 'civility' in legal practice and what are the consequences of incivility?