What?
- For Private Bar Lawyers taking a Legal Aid Certificate.
- Private Bar Mentoring Program gives Private Bar Lawyers access to senior Private Bar Lawyers. The senior lawyers wish to hear from you. A roster is available.
- There are three levels:
Level 1 – Informal Contact (senior counsel encourage you to call/email).
Level 2 – Senior Counsel Consultation (bill a 1-4 hour sit-downs with senior counsel as disbursement).
Level 3 – Junior Counsel Observation Certificates(an opportunity to observe senior counsel court cases).
- Contact your Nova Scotia Legal Aid regional Managing Lawyer with any questions.
Who?
Senior members of the criminal and family private Bar have worked with Nova Scotia Legal Aid to support Private Bar Lawyers taking Legal Aid Certificates.
Robert Moores (NSLA Managing Lawyer); Mary Jane McGinty;
Joel Pink,QC; Phil Star, QC.; Karen Hudson, QC(NSLA ED)
Adams Photography Inc.
Why?
- Nova Scotia Legal Aid and the Senior Private Bar recognize that the Private Family and Criminal Bar often practice in isolation.
- Mentoring supports excellence in client service.
Nova Scotia Legal Aid thanks the Private Bar who participate in the delivery of legal aid and acknowledges your access to justice commitment by taking these cases.
How?
- Private Bar Lawyers are encouraged to reach out to regional Senior Private Bar for informal calls or emails. NSLA does not need to be notified of this. A mentor roster is available – contact your local Legal Aid regional office, or access the Certificate Lawyers section of the NSLA website.
- If you are seeking a “Senior Counsel Disbursement” to sit down with aSenior Private Bar lawyer for 1-4 hours, contact your regional Managing Lawyer for Legal Aid, or if an active conflict exists for that, you may contact the Service Delivery Director for Nova Scotia Legal Aid ( or 902-420-6578 or toll-free at 1-877-420-6578).
- Observation Certificates are also available to observe senior counsel court proceedings. Feel free to reach out to roster lawyers; senior lawyers and NSLA want this to work for you.
Confidentiality Protocol
This Protocol is provided to support the Nova Scotia Legal Aid Private Bar Mentoring Program and does not replace or erode the responsibilities on counsel pertaining to the Rules of Professional Conduct of the Nova Scotia Barristers’ Society, such as conflicts, confidentiality and privilege.
Counsel shall conduct a conflict check prior to establishing a mentoring relationship, especially where the facts stray beyond the general or hypothetical and into information which may be confidential or privileged, client consent is required in addition to a conflict check.
This Protocol outlines potential concerns and solutions regarding questions of confidentiality and privilege arising from the Private Bar Mentoring Program (PBMP). It is divided into three parts, starting with a brief discussion on confidentiality and privilege generally, followed by specific considerations applicable to mentoring at Level 1 and Levels 2 & 3 of the PBMP.
Confidentiality and Privilege Generally
The duty of confidentiality is central to legal practice. As noted by MacKenzie in Lawyers and Ethics:
Rules of professional conduct require lawyers to hold in strict confidence all information concerning the business and affairs of clients acquired in the course of a professional relationship. Lawyers must not divulge any such information without the express or implied authorization of their clients unless required by law to do so.[1]
Similarly, solicitor-client privilege has evolved into a substantive rule of law with a unique position within the legal system.[2] It must be as close to absolute as possible to ensure public confidence, and it will only yield in certain clearly defined circumstances which do not involve a balancing of interests on a case- by-case basis.[3] The privilege is that of the client and can only be waived by the client.[4]
Confidentiality and Privilege at Level 1
Level 1 of the PBMP fosters informal, but proactive contact between junior and senior lawyers by way of an accessible roster of participating senior lawyers. It is expected that most contact will be by telephone, email or in passing at the courthouse.
As with all interactions between counsel, the duty of confidentiality applies.[5] Similarly, a junior lawyer seeking input or advice from a senior lawyer must not disclose information covered by solicitor-client privilege. Junior lawyers are under a duty to keep the client’s identity, business and personal affairs confidential, unless expressly or implied authorized by the client.[6] Privilege and confidentiality may only be pierced in very limited circumstances.[7]
At Level 1, maintaining confidentiality and privilege may often be accomplished by way of depersonalizing the facts or stating the facts as a hypothetical. E.g.: “Give me your opinion - what if a guy is charged with…” or “Let’s say a guy did…” However, where the facts stray beyond the general or hypothetical, and into information which may breach confidentiality or privilege, client consent is required. Oral consent may be sufficient, but a written waiver is ideal. Senior counsel may wish to confirm consent with junior counsel prior to continuing a discussion or giving advice.
Where consent is required, it should be treated as a signal by both junior and senior counsel to consider the second important issue: Conflicts.[8] Canadian courts recognize that accused persons have the right to effective assistance of counsel unencumbered by conflicts of interest.[9] Despite the informal nature of Level 1 mentoring, it may be necessary in some circumstances to do a conflict check to make sure that a junior lawyer is not seeking advice from a senior lawyer who happens to represent the complainant, a co-accused, etc. It is expected that this will occur in the minority of Level 1 cases, but the requirement should be assessed on a case-by-case basis.
Confidentiality and Privilege at Levels 2 & 3
As in Level 1 scenarios, advice and discussion between legal counselmust abide by the limits of solicitor-client privilege and is subject to a duty of confidentiality. However, mentoring at Levels 2 and 3 will occur when the
issues to be discussed require greater consultation and deliberation than can be provided through Level 1 assistance. As such, somewhat different considerations apply.
It is expected that Level 2 and 3 mentoring will include discussion of procedural or trial strategy, substantive questions of law or professional ethics, etc. In such situations client confidences may be revealed even if the lawyers attempt to depersonalize the facts or speak in hypotheticals. Furthermore, an attempt to conceal the client’s identity and circumstances may hinder the full and frank disclosure of facts, and thus the provision of useful and well-founded legal advice.
Therefore, in Level 2 or 3 mentoring, the issues of confidentiality and conflicts are more pronounced, and should be considered in every case. Junior counsel must obtain client consent prior to seeking Level 2 or Level 3 advice, and senior counsel should remind junior counsel of that obligation.
Similarly, a conflict check should be conducted in all Level 2 and 3 cases, prior to substantive discussion between counsel. The process need not be formal or extensive, but it must be done for the protection of lawyers and clients alike.
As always, lawyers must be guided by the law, the rules of professional responsibility, and ethical norms. With these considerations in mind, the PBMP will be a benefit to all involved.
NSLA Private Bar Mentoring ProgramOctober 2016Page 1 of 5
[1] Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline, 3rded, Carswell, 2001.
[2]R. v. McClure, 2001 SCC 14 at paras. 31.
[3]Ibid, at para. 17 – 25, 35.
[4]Ibid, at para. 37.
[5]N.S. Code of Professional Conduct, s. 3.3 [Code].
[6]Code s. 3.3-1.
[7] Piercing Confidentiality: See Code s. 3.3-3; Piercing Privilege: See Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 at para. 53:“The only exceptions recognized to the privilege are the narrowly guarded public safety and right to make full answer and defence exceptions.”
[8]Code s. 3.4.
[9]R. v. Silvini, [1991] O.J. No. 1931 (C.A.); R. v. Neil, 2002 SCC 70 at para 19.