NCA Professional Responsibility and Legal Ethics 3 — Questions and Answers
Question 1: The duty of competence in legal professional rules requires a lawyer to:
- Be an expert in every area of law
- Have and apply the legal knowledge, skills, and attributes appropriate to the retainer, or acknowledge the limits of competence and obtain assistance or refer the matter (Correct answer)
- Only accept retainers in areas where they have prior court experience
- Guarantee successful outcomes for clients
Correct answer: Have and apply the legal knowledge, skills, and attributes appropriate to the retainer, or acknowledge the limits of competence and obtain assistance or refer the matter
Competence requires the application of relevant knowledge, skills, and care—not perfection or expertise in every area. A lawyer who lacks competence in a particular area must either develop it, associate with a competent lawyer, or refer the matter to one. Accepting a retainer beyond one's competence without remedy is professional misconduct.
Question 2: The SCC in Groia v. Law Society of Upper Canada [2018] addressed the tension between which two professional duties?
- The duty to maintain client confidentiality vs. the duty of candour to the court
- The duty to act with civility and courtesy vs. the duty of zealous advocacy on behalf of the client (Correct answer)
- The duty to charge reasonable fees vs. the duty to ensure access to justice
- The duty to avoid conflicts of interest vs. the duty of loyalty to the client
Correct answer: The duty to act with civility and courtesy vs. the duty of zealous advocacy on behalf of the client
In Groia v. LSUC [2018], the SCC addressed whether a lawyer's incivility in court proceedings (making allegations of prosecutorial misconduct without adequate basis) could constitute professional misconduct. The Court held that while civility is important, the duty of zealous advocacy must be given significant weight in disciplinary proceedings.
Question 3: The Federation of Law Societies of Canada's Model Code of Professional Conduct serves what function in Canada?
- It is binding federal legislation regulating all lawyers in Canada
- It provides a harmonized model that provincial law societies may adopt, facilitating consistent professional standards and national mobility of lawyers (Correct answer)
- It replaces all provincial law society rules automatically
- It governs only lawyers who practise across provincial boundaries
Correct answer: It provides a harmonized model that provincial law societies may adopt, facilitating consistent professional standards and national mobility of lawyers
The Federation of Law Societies' Model Code is a model framework developed to harmonize professional conduct rules across provinces and facilitate national mobility under the National Mobility Agreement. Each provincial law society retains its own regulatory authority and adopts the model (with modifications) as its own rules.
Question 4: In Canada, solicitor-client privilege belongs to which party and can be waived by whom?
- The privilege belongs to the lawyer, who may waive it at professional discretion
- The privilege belongs to the client, and only the client (or their authorized representative) can waive it (Correct answer)
- The privilege belongs jointly to both the lawyer and client, requiring both to consent to waiver
- The privilege belongs to the court, which may pierce it in the interests of justice
Correct answer: The privilege belongs to the client, and only the client (or their authorized representative) can waive it
Solicitor-client privilege belongs to the client. The lawyer has a professional obligation to assert and protect the privilege on behalf of the client and cannot waive it unilaterally. Only the client can waive the privilege, expressly or impliedly (e.g., by putting the legal advice in issue).
Question 5: Under Canadian professional conduct rules, a lawyer who discovers that their client has committed perjury during the proceeding must:
- Maintain confidentiality and continue representing the client without addressing the perjury
- Take steps to rectify the situation, which may include advising the client to correct the testimony, and if the client refuses, the lawyer may have to withdraw and potentially take other remedial steps (Correct answer)
- Immediately report the perjury to the court without consulting the client
- Complete the case and report the perjury to the law society after the matter concludes
Correct answer: Take steps to rectify the situation, which may include advising the client to correct the testimony, and if the client refuses, the lawyer may have to withdraw and potentially take other remedial steps
When a lawyer discovers client perjury, the obligations under the rules require the lawyer to: (1) attempt to persuade the client to correct the false testimony; (2) if the client refuses, consider withdrawal; (3) the lawyer must not continue to actively assist in the perjury or mislead the court. Reporting to the court directly is generally not required absent specific rules.
Question 6: In which Canadian case did the SCC confirm that solicitor-client privilege is a 'principle of fundamental justice' under s. 7 of the Charter?
- R v. McClure [2001]
- Lavallee, Rackel & Heintz v. Canada (AG) [2002] (Correct answer)
- R v. Campbell [1999]
- DescĂ´teaux v. Mierzwinski [1982]
Correct answer: Lavallee, Rackel & Heintz v. Canada (AG) [2002]
In Lavallee, Rackel & Heintz [2002] the SCC confirmed that solicitor-client privilege is a principle of fundamental justice under s. 7 of the Charter, and that search warrants targeting law office materials require heightened procedural safeguards to protect the privilege.
NCA Professional Responsibility and Legal Ethics 3
The duty of competence in legal professional rules requires a lawyer to: