Professional Responsibility and Legal Ethics Flashcards

The 'crime-fraud exception' to solicitor-client privilege means that:

Answer: Communications made for the purpose of obtaining legal advice about a contemplated crime or fraud are not protected by privilege

Communications made in furtherance of a crime or fraud—where the lawyer's advice is sought to commit or conceal an ongoing crime—are not protected by solicitor-client privilege. However, seeking advice about past crimes or defending against a criminal charge is fully protected. The exception is narrow.

A lawyer is asked to provide a legal opinion to a corporate client about the tax implications of a transaction. Unknown to the lawyer, the client intends to use the opinion as cover for a tax fraud scheme. The lawyer's potential liability includes:

Answer: Potential negligence liability if the lawyer failed to meet the standard of care, and potential professional misconduct if the lawyer knew or should have known the fraudulent purpose

If the lawyer provided the opinion without meeting the standard of care (e.g., failed to identify red flags of fraud), they may be liable in negligence to the client and potentially to third parties. If the lawyer knew of the fraudulent purpose, they may face professional misconduct and potentially civil or criminal liability for facilitation.

Under the LSO's rules, which type of fee arrangement requires particularly careful management and disclosure to the client?

Answer: Contingency fee agreements, which must be in writing, must disclose the percentage and calculation method, and must comply with provincial regulation

Contingency fee agreements are regulated by provincial legislation (e.g., Ontario's Solicitors Act) and the LSO's rules. They must be in writing, must clearly disclose the percentage, the calculation method (gross or net of expenses), disbursements, and termination provisions. Some provinces cap contingency fees.

The principle that a lawyer owes a duty to the 'administration of justice' as well as to their client is best illustrated by which obligation?

Answer: The duty not to knowingly introduce false evidence or make misrepresentations to the court, even if instructed to do so by the client

A lawyer's dual obligations to client and to the justice system means the lawyer cannot simply do whatever the client instructs. The duty to the court (candour, not introducing false evidence) overrides the client's instructions when they conflict. This tension is fundamental to the Canadian model of legal ethics.

When a lawyer in Canada terminates a retainer, which file-related obligations arise?

Answer: The lawyer must return the client's property and documents, provide a complete copy of the file if requested, and retain the file for the period required by the law society's retention guidelines

On termination, lawyers must return client property and documents, provide copies of the file upon request (subject to valid liens for unpaid fees in some jurisdictions), and retain files for the minimum period required by law society rules (typically 10 years for non-estate files). A solicitor's lien over documents is recognized but cannot be used to withhold information that prejudices the client's ongoing matter.

What is the 'responsible communication' defence established in Grant v. Torstar Corp. [2009] for defamation claims against media defendants?

Answer: A defendant who publishes a defamatory statement on a matter of public interest is not liable if they acted responsibly in verifying the information—the defence focuses on the process of reporting, not the truth of the statement

In Grant v. Torstar Corp. [2009], the SCC created the responsible communication on matters of public interest defence. It applies when: (1) the publication is on a matter of public interest; and (2) the defendant acted responsibly in attempting to verify the information. It protects responsible journalism even when the statement turns out to be false.