NCA Professional Responsibility — Questions and Answers
Question 1: Under the Federation of Law Societies of Canada Model Code, what is a lawyer's primary duty?
- To win the case at all costs
- To the client, but subject to overriding duties to the administration of justice, the court, and the rule of law (Correct answer)
- To the law society only
- To the opposing party
Correct answer: To the client, but subject to overriding duties to the administration of justice, the court, and the rule of law
While the lawyer-client relationship is central, the Model Code establishes a hierarchy of duties. The lawyer's duty to the client is paramount in most circumstances, but it is subject to overriding duties to the administration of justice, the court, and the rule of law. A lawyer cannot, for example, mislead the court or assist a client in illegal conduct, even if instructed to do so.
Question 2: What is the duty of 'confidentiality' and how does it differ from 'solicitor-client privilege'?
- They are identical concepts
- Confidentiality is a broad ethical duty covering all information learned in the professional relationship, while solicitor-client privilege is a narrower evidentiary rule protecting communications made for the purpose of seeking or giving legal advice (Correct answer)
- Solicitor-client privilege is broader than the duty of confidentiality
- Neither can ever be waived
Correct answer: Confidentiality is a broad ethical duty covering all information learned in the professional relationship, while solicitor-client privilege is a narrower evidentiary rule protecting communications made for the purpose of seeking or giving legal advice
The duty of confidentiality is an ethical obligation that covers all information obtained in the course of the professional relationship, regardless of source. Solicitor-client privilege is a legal evidentiary rule that protects confidential communications between lawyer and client made for the purpose of seeking or providing legal advice. Privilege can only be waived by the client and survives the end of the relationship and even the client's death (limited exceptions apply, e.g., public safety).
Question 3: What must a lawyer do upon discovering a conflict of interest between two current clients?
- Continue representing both clients but favour the longer-standing client
- Immediately assess whether the conflict can be resolved with informed consent, and if not, withdraw from one or both representations to avoid compromising either client's interests (Correct answer)
- Ignore the conflict if neither client has complained
- Report the conflict to the opposing counsel
Correct answer: Immediately assess whether the conflict can be resolved with informed consent, and if not, withdraw from one or both representations to avoid compromising either client's interests
Upon discovering a conflict, the lawyer must: (1) assess whether it is a consentable conflict (some conflicts cannot be waived); (2) if consentable, obtain informed consent in writing from both clients after full disclosure; (3) if not consentable, or if consent is not given, withdraw from one or both representations. Continuing without addressing the conflict is a serious ethical violation that can result in disciplinary action.
Question 4: What is a lawyer's duty when they become aware that their client intends to commit a future crime?
- Report it to the police immediately in all cases
- The lawyer must attempt to dissuade the client; if unsuccessful, they must withdraw from the representation and may, in certain circumstances involving serious bodily harm or death, disclose information to prevent the crime under the 'future harm' exception (Correct answer)
- The lawyer must assist the client because of the duty of loyalty
- The lawyer should do nothing because of solicitor-client privilege
Correct answer: The lawyer must attempt to dissuade the client; if unsuccessful, they must withdraw from the representation and may, in certain circumstances involving serious bodily harm or death, disclose information to prevent the crime under the 'future harm' exception
A lawyer must not assist a client in committing a crime. If the client discloses an intention to commit a crime, the lawyer should attempt to dissuade them. If unsuccessful, the lawyer must withdraw. The Model Code permits (but does not require) disclosure of confidential information when there is an imminent risk of death or serious bodily harm — the 'future harm' exception. This is the primary exception to confidentiality.
Question 5: What are a lawyer's obligations regarding the handling of trust funds in Canada?
- Trust funds can be mixed with the lawyer's personal funds
- Trust funds must be held in a designated trust account, kept separate from the lawyer's own funds, properly recorded with detailed accounting, and only disbursed in accordance with the trust conditions (Correct answer)
- There are no specific rules about trust funds
- Trust funds should be invested in high-return securities
Correct answer: Trust funds must be held in a designated trust account, kept separate from the lawyer's own funds, properly recorded with detailed accounting, and only disbursed in accordance with the trust conditions
Trust fund handling is one of the most strictly regulated aspects of legal practice. Requirements include: maintaining a designated trust account at an approved financial institution, never mixing trust funds with personal or general office funds, maintaining detailed records of all trust transactions, providing trust statements to clients, and disbursing funds only as authorized. Mishandling trust funds is the most common reason for disbarment.
Question 6: What is the 'duty of candour' owed by a lawyer to the court?
- A duty to always tell the court the client's version of events
- A duty to not knowingly mislead the court, to cite relevant adverse authorities, and to correct any false statements or evidence — even when this conflicts with the client's interests (Correct answer)
- A duty to provide the court with the lawyer's personal opinion on the case
- A duty that only applies to criminal defence lawyers
Correct answer: A duty to not knowingly mislead the court, to cite relevant adverse authorities, and to correct any false statements or evidence — even when this conflicts with the client's interests
The duty of candour requires lawyers to: not knowingly make false statements to the court, not mislead the court by omission, disclose relevant legal authorities (even those adverse to their client's position), correct any material false statement or evidence that comes to their attention, and not present evidence they know to be fabricated. This duty overrides the duty to the client and is essential to the administration of justice.
NCA Professional Responsibility
Under the Federation of Law Societies of Canada Model Code, what is a lawyer's primary duty?