LSO Barrister Ethics — Questions and Answers
Question 1: Under the Rules of Professional Conduct of the Law Society of Ontario (LSO), what is a lawyer's duty when they discover their client has committed perjury?
- Ignore it and continue with the case
- The lawyer must attempt to persuade the client to rectify the false testimony; if the client refuses, the lawyer must withdraw from the representation, but the lawyer generally cannot disclose the perjury to the court due to solicitor-client privilege, except through withdrawal (Correct answer)
- The lawyer must immediately inform the court
- The lawyer must continue representing the client and cannot withdraw
Correct answer: The lawyer must attempt to persuade the client to rectify the false testimony; if the client refuses, the lawyer must withdraw from the representation, but the lawyer generally cannot disclose the perjury to the court due to solicitor-client privilege, except through withdrawal
This creates a difficult ethical dilemma. The lawyer cannot knowingly present false evidence or mislead the court, but also owes a duty of confidentiality to the client. The resolution is: (1) firmly advise the client to correct the testimony; (2) if the client refuses, withdraw from the case, citing inability to continue in a manner consistent with professional obligations; (3) the lawyer cannot reveal the reason for withdrawal or disclose the perjury directly, but withdrawal prevents ongoing participation in the misleading of the court.
Question 2: What are a lawyer's obligations regarding 'competence' under the LSO Rules?
- A lawyer is automatically competent in all areas once licensed
- A lawyer must perform all legal services competently, which includes knowing applicable law, performing thorough investigation and research, applying knowledge and skills effectively, managing time and resources, and recognizing and resolving limitations in competence (Correct answer)
- Competence only relates to courtroom skills
- A lawyer only needs to be competent in one area of law
Correct answer: A lawyer must perform all legal services competently, which includes knowing applicable law, performing thorough investigation and research, applying knowledge and skills effectively, managing time and resources, and recognizing and resolving limitations in competence
Rule 3.1 defines competence broadly: it includes intellectual capacity to perform legal analysis, ability to research and apply the law, communication skills, organizational skills to manage practice effectively, capacity to advise clients appropriately, and recognition of one's own limitations. A competent lawyer must also engage in continuing professional development, maintain appropriate client service standards, and adapt to changes in the law.
Question 3: What is the 'undertaking' in legal practice and what are the consequences of breaching one?
- An undertaking is an informal suggestion with no binding effect
- A personal promise by a lawyer to do or refrain from doing something, which is binding on the lawyer's honour and professional integrity — breach can result in disciplinary proceedings, costs orders, and loss of professional reputation (Correct answer)
- An undertaking can be revoked at any time
- Undertakings only apply between lawyers in the same firm
Correct answer: A personal promise by a lawyer to do or refrain from doing something, which is binding on the lawyer's honour and professional integrity — breach can result in disciplinary proceedings, costs orders, and loss of professional reputation
A lawyer's undertaking is one of the most serious professional obligations. It is a personal promise given by the lawyer that binds them on their professional honour. Breach of an undertaking can result in: disciplinary proceedings by the LSO, contempt of court, costs orders, professional negligence claims, and severe reputational damage. Lawyers should only give undertakings they are certain they can fulfill, and should record them in writing.
Question 4: What are the obligations of a lawyer who receives privileged or confidential documents that were clearly sent in error (inadvertent disclosure)?
- The lawyer can read and use the documents freely
- The lawyer must immediately stop reading the documents, notify the sender, and follow any directions regarding return or destruction of the documents, without using the information gained (Correct answer)
- The lawyer must forward the documents to the court
- The lawyer has no obligation regarding inadvertently disclosed documents
Correct answer: The lawyer must immediately stop reading the documents, notify the sender, and follow any directions regarding return or destruction of the documents, without using the information gained
Rule 7.2-10 of the Rules of Professional Conduct addresses inadvertent disclosure. Upon recognizing that documents are privileged or confidential and were sent in error, the lawyer must: (1) immediately stop reviewing them; (2) promptly notify the sender; (3) return, destroy, or otherwise deal with the documents as directed by the sender. Using inadvertently disclosed privileged information would undermine the fundamental principle of solicitor-client privilege and the integrity of the litigation process.
Question 5: What is a lawyer's duty regarding access to justice under the LSO's Rules of Professional Conduct?
- Lawyers have no obligation to promote access to justice
- Lawyers have a professional obligation to contribute to the legal profession's goal of providing access to justice, including providing legal services pro bono, supporting legal aid, and taking steps to reduce barriers to accessing legal services (Correct answer)
- Access to justice is solely the government's responsibility
- Only lawyers who work at legal clinics have duties regarding access to justice
Correct answer: Lawyers have a professional obligation to contribute to the legal profession's goal of providing access to justice, including providing legal services pro bono, supporting legal aid, and taking steps to reduce barriers to accessing legal services
The LSO Rules recognize that lawyers have a role in promoting access to justice. This includes: participating in pro bono work (the LSO encourages 50 hours per year through Pro Bono Ontario), supporting legal aid and community legal clinics, using alternative billing arrangements to improve affordability, promoting ADR where appropriate, and supporting law reform initiatives that improve access. The broader legal profession's legitimacy depends on access to justice for all.
Question 6: What are the rules regarding lawyer advertising and marketing in Ontario?
- Lawyers cannot advertise at all in Ontario
- Lawyers may market their services but must ensure all communications are truthful, accurate, and not misleading; they cannot make claims of superiority that cannot be verified, guarantee outcomes, or create unjustified expectations (Correct answer)
- Any form of advertising is permitted without restriction
- Only law firms, not individual lawyers, can advertise
Correct answer: Lawyers may market their services but must ensure all communications are truthful, accurate, and not misleading; they cannot make claims of superiority that cannot be verified, guarantee outcomes, or create unjustified expectations
Ontario permits lawyer advertising subject to professional standards. Key rules include: communications must be truthful, accurate, and verifiable; no claims of quality or superiority unless independently verified; no guarantee of results; no creation of unjustified expectations; no exploitation of vulnerable persons; testimonials are permitted but must be genuine and not misleading. The LSO monitors advertising compliance and can take disciplinary action for misleading marketing.
LSO Barrister Ethics
Under the Rules of Professional Conduct of the Law Society of Ontario (LSO), what is a lawyer's duty when they discover their client has committed perjury?