Professional Responsibility and Legal Ethics Flashcards

In Canada, which body regulates the legal profession in each province and is responsible for admitting lawyers to the bar and disciplining them?

Answer: The provincial law society (e.g., Law Society of Ontario, Barreau du Québec)

The legal profession in each Canadian province is regulated by the provincial law society, which exercises statutory authority to admit, license, and discipline lawyers. The Canadian Bar Association is a voluntary professional association and has no regulatory authority.

Solicitor-client privilege (legal professional privilege) in Canadian law protects communications that meet which criteria?

Answer: A confidential communication between a lawyer and client made for the purpose of seeking or giving legal advice

Solicitor-client privilege (Solosky v. Canada [1980]; Descôteaux v. Mierzwinski [1982]; Lavallee, Rackel & Heintz [2002]) protects communications that are: (1) between a client and a lawyer; (2) confidential; (3) made for the purpose of obtaining or giving legal advice. It is near-absolute once established.

The Law Society of Ontario's Rules of Professional Conduct impose a duty of confidentiality on lawyers. This duty:

Answer: Is broader than privilege—it applies to all information obtained in the professional relationship, regardless of whether it would be privileged

The duty of confidentiality under the Rules of Professional Conduct is broader than solicitor-client privilege. It covers all information a lawyer acquires in the professional relationship, regardless of the source, and continues after the retainer ends. Privilege is an evidentiary rule; confidentiality is an ethical obligation.

A lawyer has a conflict of interest between two clients. Under the Law Society of Ontario's Rules of Professional Conduct, when may a lawyer represent both clients?

Answer: When the clients' interests are directly adverse, dual representation is prohibited even with consent; in other cases, informed consent in writing may allow dual representation if the lawyer reasonably believes they can act for both without detriment

Rule 3.4 of the LSO Rules prohibits acting when there is a conflict of interest unless there is no substantial risk that representation would be adversely affected. Where interests are directly adverse (litigation), dual representation is prohibited even with consent. In other situations, informed consent in writing may allow it if the lawyer can competently serve both.

Under the Law Society of Ontario's Rules of Professional Conduct, what obligations does a lawyer owe when they discover their client intends to commit a crime that is likely to result in serious bodily harm?

Answer: The lawyer may, in certain circumstances, disclose confidential information to prevent the serious harm, and must withdraw from the representation

The LSO Rules provide a permissive (not mandatory) exception to confidentiality where a lawyer believes on reasonable grounds that disclosure is necessary to prevent an imminent risk of serious bodily harm or death. The lawyer may disclose to appropriate persons and must generally withdraw from the representation.

The duty of candour (honesty) to the court requires a lawyer to:

Answer: Not mislead the court, and to bring to the attention of the court binding adverse legal authority not otherwise cited, even if unfavourable to the client's position

Under the LSO Rules of Professional Conduct (and equivalent rules in other provinces), a lawyer must not knowingly mislead the court, must not suppress evidence, and—critically—must bring to the court's attention binding authority not otherwise cited, even if it is contrary to the client's position.