SACROSANCTITY:
PRINCIPLES AND PRACTICE OF
PROFESSIONAL, ETHICAL AND LEGAL RESPONSIBILITY
______
DAVID C. DAY, Q.C.
Newfoundland Bar
______
SYNOPSIS
Summaries of, and excerpts from, decisions, legislation, authors, and reports (usually omitting footnotes or endnotes) on principles and practice of professional, ethical, and legal responsibility; primarily from June 2006 to June 2008
(The seven previous papers on this subject, and an unabridged version of this paper, cumulatively covering the period03 September 1189(the birth date of legal memory) to June 2008,
are at lewisday.ca>ethics.)
14 July 2008
TABLE OF CONTENTS
DEDICATION...... 1
1.0 INTRODUCTION...... 5
2.0 SOURCES AND STANDARDS OF RESPONSIBILITY...... 10
2.1 Professional and Ethical Responsibility...... 10
2.2 Legal Responsibility...... 37
3.0 APPLICATION OF STANDARDS OF RESPONSIBILITY...... 41
3.1 Relationships with Clients – Retainer and Authority...... 41
3.2 Relationships with Clients – Conflicts Of Duty...... 47
3.2.1 Generally...... 47
3.2.2 Conflict found...... 75
3.2.3 Conflict not found...... 98
3.3 Relationships with Clients – Rendering Services...... 102
3.3.1 Generally...... 102
3.3.2 Confidentiality and Privilege...... 132
3.3.3 Negotiations...... 142
3.4 Relationships with Clients – Personal...... 162
3.5 Relationships with Clients – Special Cases...... 168
3.6 Relationships with Third Parties...... 188
3.7 Relationships with Other Lawyers...... 195
Table Of Contents (General)
(Continued)
______
3.8 Relationships with Courts...... 203
3.9 Relationships with State...... 213
3.10 Relationships with Technology...... 216
4.0 PROCEEDINGS DERIVING FROM BREACHES OF
STANDARDS OF RESPONSIBILITY...... 234
4.1 Administrative: Disciplinary...... 234
4.2 Judicial: Penal...... 244
4.3 Judicial: Civil...... 250
5.0 FEES AND COSTS...... 289
5.1 Fees...... 289
5.2 Costs...... 312
TABLE OF CONTENTS
DEDICATION...... 1
No right to tax-free counsel...... 2
1.0INTRODUCTION...... 5
2.0SOURCES AND STANDARDS OF RESPONSIBILITY...... 10
2.1Professional and Ethical Responsibility...... 10
Professionalism Clearly Defined...... 10
The Mayonnaise Jar and 2 Cups of Coffee...... 12
Women lawyers face same challenges as trailblazers...... 13
Barristers may be graded on quality...... 15
Exile On Bay Street...... 16
Victorious court battles: Just the Beginning...... 17
When does legal advertising cross the line...... 18
From Bizarre To Ridiculous – That Was 2006...... 21
The 48 Secret Rules of Lawyering...... 23
Advocacy: Simplicity of utterance...... 28
Professional Responsibility...... 30
The Independence Of The Bar: An Unwritten Constitutional Principle...32
Divorce: how lawyers make things worse...... 35
2.2Legal Responsibility...... 37
755165 Ontario v. Parsons, Myles-Leger Ltd., Law Society (NL)...... 37
Looking to practise elsewhere? National Mobility Agreement to
expand and include three territories...... 39
Joint wills could be minefield for estate lawyers...... 39
3.0APPLICATION OF STANDARD OF RESPONSIBILITY...... 41
3.1Relations with Clients – Retainer and Authority...... 41
So it’s come to this: firing a client...... 41
Ethical Considerations in Collaborative Law Practice...... 42
The retaining shield...... 43
3.2Relationships with Clients – Conflicts of Duty...... 47
3.2.1Generally...... 47
Lessons Learned: Lawyers’ Biggest Career
Mistakes and Successes...... 47
Conflicting interests cause interesting conflicts...... 52
When moving to another firm, how should a lawyer weigh
conflicts of interest against client confidentiality...... 54
Conflicts of Interest: The Supreme Court’s Ethical
Trilogy – MacDonald Estate, Neil, and Strother...... 56
Legal Ethics in Child Custody and Dependency Proceedings.....58
Who are ‘Clients’ (and Why It Matters)”...... 66
3.2.2Conflict found...... 75
Brockville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd...75
Advice from former partner turned judge results in
firm’s removal...... 76
3464920 Canada Inc v. Strother...... 77
Cleanese Canada Inc. v. Murray Demolition Corp....... 90
Paul Fontiane c. Sa Majeste la Riene ET ENTRE Cristina
Nedelcu c. Sa Majeste la Reine Supreme Court of
Canada Bulletin of Proceedings...... 93
Chern v. Chern...... 93
3.2.3Conflicts not found...... 98
Berg v. Bruton (headnote and paras 8-22)...... 98
3.3Relationships with Clients – Rendering Services...... 102
3.3.1Generally...... 102
[L]aw practice has gone to the dogs - dogs and to the kids...... 102
Using plain language to improve client relations...... 103
Recording of ‘true intent’ advised for transfers of
jointly held assets...... 104
How to arrange a kinder marriage contract...... 106
The legal opinion jitterbug...... 108
Closing Time [:] The challenges of shutting down
a sole practise...... 109
Family Law...... 111
The Best Case I Never Had: Lessons in Solicitor
Client Communications...... 111
A Suicidal Client...... 113
[C]ompetency is a legal, not a medical test...... 113
The Do’s and Don’ts of pre-nuptials...... 115
Compassionate Checklist...... 117
The Year in Family Law...... 119
Grammarians take heed of telecomma dispute...... 121
Filing Away For Future Reference...... 122
Hall v. McLaughlin Estate...... 124
Cherneski v. Cherneski...... 125
My client, my case: You can’t have one without the other...... 129
The Chicken or the Client? [:] Lawyers can’t focus on their
cases to the exclusion of those who bring them...... 130
3.3.2Confidentiality and Privilege...... 132
Doucette (Litigation Guardian of) v.
Wee Watch Day Care Systems Inc...... 132
Unsolicited Receipt of Privileged or Confidential Materials:
Withdrawal of Formal Opinion 94-383 (July 5, 1994)...... 134
Blank v. Canada...... 134
Blank v. Canada (Minister of Justice)...... 136
Does solicitor-client privilege extend to ‘when did you
get legal advice?’...... 137
Ontario (Ministry of Correctional Services) v. Goodis...... 139
3.3.3Negotiations...... 142
Case Comment on LeVan v. LeVan: Overreaching in the
Formation of a Pre-nuptial Contract...... 142
LeVan v. LeVan...... 146
Family law lawyers legally obliged to ensure disclosure
of client assets...... 149
Domestic Contracts...... 151
Vollmer v. Jones...... 152
Lawyer’s Obligation of Truthfulness When Representing a
Client in Negotiation...... 153
Mediation – Arbitration: a contentious but often
effective compromise...... 156
Ridout v. Ridout...... 158
Family Law Releases...... 160
3.4Relationships with Clients – Personal...... 162
Is sex okay with Clients? That depends on a few things...... 162
Ex-Law Society Treasurer gets two-month suspension after
affair with family law client...... 165
3.5Relationships with Clients – Special Cases...... 168
Lawyers and the media: why ‘no comment’ won’t do...... 168
Raising Interests for Mutual Benefit...... 171
A Contrarian View: When to Fire Your Client...... 174
Unfair advantage...... 175
To Keep or to Kill [;] The evolving ethics of document destruction...... 176
Dealing with the Difficult Client...... 178
3.6Relationships with Third Parties...... 188
Lawyer chasing man who used his name to slam judge...... 188
Judge criticizes parties for tactical disclosure demands...... 189
A Family Law Practitioner’s Guide to Dealing with the
Self-Represented Litigant...... 190 3.7 Relationships with Other Lawyers 195
Injustice Rules...... 195
Life and the practice of law after suffering professional burnout...... 195
Kaplun v. Kaplun...... 197
When a lawyer becomes mentally impaired...... 199
Walker v. Walker...... 200
3.8Relationship with Courts...... 203
Private talks [:] Lawyers shouldn’t have ex parte communications
with judges – except when it’s OK...... 203
Undisclosed Legal Assistance to Pro See Litigants...... 204
Wigs, gowns stay in British criminal courts, but shucked in
civil, family...... 206
Kudoba v. Kudoba...... 206
Zhu v. Li...... 210
Mamchin v. Mamchin-Burdman...... 211
Advocacy: Simplicity of utterance...... 211
3.9Relationship with State...... 213
Draft money laundering bill raises numerous compliance concerns...... 213
Mob Rule...... 215
3.10Relationships with Technology...... 216
Advertising in an electronic age...... 216
Guidelines For Practising With New Information Technologies...... 218
Think about e-mail as a medium as well as a message...... 219
The Law of the Land [:] ‘I hate BlackBerrys’...... 220
E-data dilemmas [-] The ethics of document retention in
an electronic world...... 222
Law firms can maximize efficiency through use of
electronic information...... 223
Alberta e-discovery order goes well beyond e-communications...... 226
Review and Use of Matadata...... 227
E-mail Confidential Do those boilerplate confidentiality
notices really work?...... 227
Internet Communications with Prospective Clients When
Disclaimers May Not Be Enough...... 229
4.0PROCEEDINGS DERIVING FROM BREACHES
OF STANDARDS OF RESPONSIBILITY...... 234
4.1Administrative: Disciplinary...... 234
O’Toole v. Law Society of New Brunswick...... 234
Histed v. Law Society (Manitoba)...... 237
[D.] v. Law Society of Newfoundland...... 241
4.2Judical: Penal...... 244
R. v. Hyman...... 244
Westmount lawyer, 75, gets 15 months for bilking widows...... 245
Class action scrutiny at Milberg Weiss...... 247
Paralegal gets house arrest for practising law...... 248
4.3Civil...... 250
Former head of law society sued for $1.4M...... 250
Chudy v. Merchant Law Group...... 251
Cost of Lawyer’s No-Show Is Climbing...... 275
Damage Awards for Solicitor’s Negligence in Family Law:
Quality Control by the Courts v. Encouragemetn of Settlement...... 277
Mantella v. Mantella...... 286
Earl v. Wilhelm ...... 287
5.0FEES AND COSTS...... 289
5.1Fees...... 289
Ferlinger v. Maurice J. Neirinck & Assoiciates...... 289
Walker v. Schober...... 289
Let’s Be Reasonable[:] Client consent to fee agreement doesn’t
mean it’s ethical...... 298
Overcoming clients’ aversion to paying fees...... 298
T. (D.M.C.) v.S. (L.K.)...... 300
Time For Change: Unethical Hourly Billing In The Canadian
Profession And What Should Be Done About It...... 301
Legal and Accounting Costs...... 302
Legal Costs to Obtain Support Amounts...... 309
Looking beyond the billable hour...... 309
5.2Costs...... 312
Costs awarded against law firm personally...... 312
Burry v. Healey...... 313
Debora v. Debora...... 314
Kloosterman v. Kloosterman...... 315
Responsibility1 14.07.08
DEDICATION
Dugald Christie
1940 - 2006
Dalhousie Law School presented its 24th Weldon Award for Unselfish Public Service on Thursday, March 8th, 2007. This year the award went posthumously to Vancouver lawyer Dugald Christie, Class of 1966, for his unwavering commitment to making justice accessible to all — especially the poor and disabled.
Mr. Christie was best known for founding a network of pro bono clinics, the Western Canadian Society to Access Justice, that today has 61 offices from Campbell River, BC to Winnipeg with over 400 lawyers donating their services.
Mr. Christie's citation, written with the help of his sister Dr. Janet Christie Seely, [which] accompanied this year's Weldon Award presentation [,] commended his selfless work and cited his notable accomplishments:
The citation is reprinted from the summer 2007 issue of Hearsay, published by DalhousieLawSchool, Halifax.
Dugald Christie was born in New York on November 7,1940. After obtaining his law degree from Dalhousie in 1966, he started a law practice in Vancouver and lived in a beautiful house in Lion's Bay. Several dramatic events in his life prompted Dugald's rebellion and major change in his career. An act of God resulted in a landslide that killed his neighbours' two sons and left Dugald's house almost worthless. He took on his neighbours' cause and fought for justice. He succeeded in getting only $5000 in personal recompense and was so incensed by his experience with the justice system that he developed a great empathy for the underdog and more and more pursued his work for the poor. He followed his feelings, but had not said goodbye to reason and prudence.
Dugald wrote of himself: "Now I relieve my rebellion against the ways of the world by bicycling to Ottawa to burn my lawyer's robes, publishing articles that judges are appointed by a system of patronage, by building a small army of lawyers to fight poverty... I lived in a Salvation Army halfway house for three years surrounded by ex-convicts and addicts of all kinds. From that citadel of poverty I attacked the highest figures in the profession.... I do not seem to have any real choice in these matters. Unfortunately, it is not a matter of virtue. I think it comes from my early childhood experiences."
Dugald's first bicycle trip across Canada was in 1998. He was 57 and it wasn't easy. He would cycle across Canada twice more. In 2000, he fasted on the Supreme Court steps in Ottawa to protest the failure of the legal system to provide fair access to the poor in a timely fashion.
In 2002, Dugald took a bus trip from Vancouver to Moncton to pass a resolution at the Canadian Bar Association Annual Meeting to approve a business plan to fund and organize probono clinics across the nation for every community over 30,000 people. The proposal failed to win the necessary support. He felt despair and bitterness, but he resolved not to give up on the bar. He wrote: "To me, pro bono is meeting the poor on their own turf and not in the high rise law office. It is rubbing shoulders with the down and out…sympathizing; not pitying."
In March 2006, Dugald received the Lawyer of the Year Award from the B.C. Law Association. In the summer of 2006, at age 65, he once more set out on his bicycle, this time to present a petition to the Prime Minister, and to try for the third time to put his resolution before the Canadian Bar to establish pro bono clinics across Canada at their Annual Meeting in St. John's, Newfoundland. Two days into the journey, he learned that he had been acknowledged for distinguished service by the Canadian Bar. He left his bicycle and took the bus back to Vancouver to receive the award and then resumed his trip.
At 6pm on July 31, 2006 near Sault St. Marie, a mini-van failed to see Dugald on his bicycle and killed him outright. Dugald Christie gave up a lucrative law practice and enviable lifestyle and, in the end, lost his life pursuing the cause of justice for all. His family and the many that supported Dugald and his life's journey pray that the many causes to which he dedicated his life will be completed.
The Weldon Award for Unselfish Public Service, sponsored by the Dalhousie Law School Alumni Association, was established in 1983 to serve as a tribute to the ideals of the LawSchool's first dean, Richard Chapman Weldon. Mr. Christie's son, Oliver, accepted the award on behalf of the family.
______
"No right to tax-free counsel" Supreme Court"
Makin, Kirk, The Globe And Mail, 25 May 2007.
______
The Charter of Rights does not provide litigants with a blanket right to obtain legal counsel, the Supreme Court of Canada ruled Friday Morning.
The Court made the statement while unanimously upholding a B.C. tax on legal services that critics had criticized as forming a barrier to those who cannot afford legal services.
“Access to legal services is fundamentally important in any free and democratic society,” the judges said, in a ruling that identified no single author.
“In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.”
The ruling soured the legacy of Dugald Christie, a Vancouver lawyer who died several months ago when he was struck by a car as he bicycled across Canada [wearing his black courtroom robes and a “Reform the Justice system” sign on his back] to raise money for his cause – access to justice for the poor. Mr. Christie was just outside Sault Ste. Marie when he was killed.
“Notwithstanding our sympathy for Mr. Christie’s cause, we are compelled to the conclusion that the material presented does not establish the major premise on which the case depends – proof of a constitutional entitlement to legal services in relation to proceedings in courts and tribunals dealing with rights and obligations,” the court said Friday.
Enacted in 1993, the British Columbia’s Social Service Tax Amendment Act imposed a 7-per-cent tax on the price of legal services. While the province maintained that its purpose was to fund legal aid, the proceeds were put into general revenue. This made it difficult to ascertain how much actually ended up enhancing access to justice.
In upholding the tax, the Supreme Court said that its ruling does not foreclose the possibility that in certain, very specific circumstances, it may find that a fundamental right to counsel is guaranteed by the Charter of Rights and Freedoms.
“The right to access the courts is not absolute and a legislature has the power under s. 92(14) of the Constitution Act, 1867, to impose at least some conditions on how and when people have a right to access the courts,” it said.
“We conclude that the text of the constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.”
David Stratas, a Toronto constitutional lawyer with Heenan Blaikie LLP, said that the court has ruled out a “broad right of free access to justice for all on every occasion.
“In other words, government does not have to set up a ‘judicare’ scheme where people have cost effective access to legal services in all contexts at all times,” Mr. Stratas said. “While the door is slammed shut on broad claims of access to justice without obstacles, it remains ajar for individual claims based on good evidence showing tough circumstances.”
Mr. Strates said that the claimant’s aim was too sweeping. “The problem with the claim was that it tried to strike out the tax on all occasions in all contexts without sufficient evidence in support of such a sweeping remedy,” he said. “A more surgical approach based on a few clients’ circumstances might have gotten further.”
“Another way of seeing the case is that the litigant gave the court only half the deck of cards – just the cards showing the hardship of the tax,” Mr. Stratas said. “The court needed the other half of the deck, which is the fiscal impact of striking down the tax. If you are seeking sweeping relief, you need sweeping evidence in support.”
Responsibility 1 14.07.08
1.0 INTRODUCTION
Nature Of Paper
This anthology summarizes, or excerpts from, judicial decisions, book and journal scholarship, legislation and reports, published primarily from June 2006 to June 2008, which address (i) principles of responsibility—professional, ethical, and legal—governing the law vocation and (ii) the practice of those theorems of responsibility, particularly by ‘family
law’ practitioners. (Unless essential to understanding of the text, footnotes and endnotes are omitted fromexcerpted material.)
Previous Papers
Seven previous comparable anthologies have been published: "Scruples" (1987), 2 C.F.L.Q. 151-197 (canvassing the period from the birthdate of legal memory to 1986); "Scrutiny"– for the National Family Law Program, 1996 (covering the period 1986 to 1996); "Security" – for the National Family Law Program, 1998 (covering the period 1996 to 1998); "Sanity" – for the National Family Law Program, 2000(covering the period June 1998 to June 2000); “Sagacity” – for the National Family Law Program, 2002 (covering the period June 2000 to June 2002);“Sensitivity” – for the National Family Law Program, 2004 (covering the period June 2002 to June 2004, and “Sincerity” – for the National Family Law Program, 2006 (covering the period June 2004 to June 2006).
Caveat
Accompanying this anthology (likewise its ancestors) is a caveat; more important than the anthology itself. The caveat is articulated by the Honorable Michel Proulx of Quebec Court of Appeal (at his passing) and David Layton, Vancouver civil and criminal litigator, in Ethics And Canadian Criminal Law – the most recent substantial work about lawyer responsibility in Canada ((Toronto: Irwin Law, 2001), at p.3):
… while certain... [responsibility] issues yield to reasonably clear answers, onmany occasions identifying or applying the proper standards can be a maddeningly challenging exercise. Reasonable people can differ as to the proper … approach to apply in a given situation. Legal … [responsibility] is not an exactscience, with every problem amenable to a set and indisputable resolution. Whatcan be most frustrating about the study of lawyers' … [responsibility] is theelusiveness of awidespread consensus on many important issues.