Class 5 - Topic 4: Candid Communication

Question 1

3.2-2 (Honesty and Candour)

Answer 1

When advising clients, a lawyer shall be honest and candid.

Question 2

[1.1] A lawyer has a duty of candour with the client on matters relevant to the retainer. This arises out of the rules and the lawyer’s fiduciary obligations to the client. …

Answer 2

… The duty of candour requires a lawyer to inform the client of information known to the lawyer that may affect the interests of the client in the matter.

Question 3

[2] The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise. …

Answer 3

… The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.

Question 4

LSO RPC Commentary R. 3.4-1 (Duty to Avoid Conflicts of Interest)

[13b] the lawyer’s duty of candour, reflected in Rule 3.2-2, requires a lawyer or law firm to advise an existing client of all matters relevant to the retainer. ..

Answer 4

.. Even where a lawyer concludes that there is no conflict of interest in acting against a current client, the duty of candour may require that the client be advised of the adverse retainer in order to determine whether to continue the retainer.

Question 5

[8] A lawyer should clearly specify the facts, circumstances, and assumptions on which an opinion is based, particularly when the circumstances do not justify an exhaustive investigation and the resultant expense to the client. …

Answer 5

…However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than mere comments with many qualifications. A lawyer should only provide his or her legal opinion to a client when it is the legal opinion that the lawyer holds and it is provided to the standard of a competent lawyer.

Question 6

[10] In addition to opinions on legal questions, the lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, economic, policy, or social complications involved in the question or the course the client should choose…

Answer 6

… In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client. The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.

Question 7

Commentary to Rule 3.6-1.1 (“Reasonable Fees and Disbursements”)

[2] The fiduciary relationship between lawyer and client requires full disclosure in all financial dealings between them and prohibits the acceptance by the lawyer of any hidden fees. ..

Answer 7

… No fee, reward, costs, commission, interest, rebate, agency or forwarding allowance, or other compensation related to professional employment may be taken by the lawyer from anyone other than the client without full disclosure to and the consent of the client or, where the lawyer’s fees are being paid by someone other than the client, such as a legal aid agency, a borrower, or a personal representative, without the consent of such agency or other person.

Question 8

[3] A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, …

Answer 8

… as much information regarding fees and disbursements, and interest as is reasonable and practical in the circumstances, including the basis on which fees will be determined.

Question 9

[4] A lawyer should be ready to explain the basis of the fees and disbursements charged to the client. ..

Answer 9

…This is particularly important concerning fee charges or disbursements that the client might not reasonably be expected to anticipate. When something unusual or unforeseen occurs that may substantially affect the amount of a fee or disbursement, the lawyer should give to the client an immediate explanation. A lawyer should confirm with the client in writing the substance of all fee discussions that occur as a matter progresses, and a lawyer may revise an initial estimate of fees and disbursements.

Question 10

[4.1] A lawyer should inform a client about their rights to have an account assessed under the …

Answer 10

the Solicitors Act.

Question 11

McKercher LLP - Duty of Candour

Answer 11

Duty of candour owed to CL which requires firm to disclose any factors relevant to the lawyer’s ability to provide effective representation

Can’t keep the CL in the dark about matters they know to be relevant to the retainer - Strother

Lawyer should advise an existing CL before accepting retainers that will require him to act against his CL even if it falls outside the bright line rule (aka not immediately adverse)

Duty of candour must be reconciled with lawyer’s obligation of confidentiality towards his new CL
- Which means that the lawyer has to get the new CL’s consent to disclose the existence, nature and scope of the new retainer; if they r effuse consent, then lawyer will be unable to fulfill his duty of candour and therefore must decline to act for new CL

This didn’t happen here - McKercher didn’t give CN the opportunity to assess their intention to represent Wallace and make a decision (to stay or leave) in response

Question 12

Outline: Candid Communication

Answer 12

• An Aspect of the Fiduciary Duty of Loyalty
• As Aspect of Good Client Relationships
• Communicating about Fees

Question 13

The Golden Rule

Answer 13

“Consider the Golden Rule when giving advice to clients: what would the lawyer want to know if the lawyer were the client?”

Under promise and over-deliver.

Question 14

Competence and Communication: Horse and Carriage

Answer 14

“The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.” LSO RPC 3.2-2, Cty 2

“Be wary of bold and over-confident assurances to the client, especially when the lawyer’s employment may depend upon advising in a particular way.”

Question 15

Nathanson - ‘What Lawyers Do…’

Answer 15

Making the will for the CL who wanted to punish her one daughter because she was lazy etc and lawyer convinced her to write a letter to the daughter now and put provisions for her in the will which were less than for the other daughters but not nothing like she originally asked him for

Question 16

‘Lawyer as Translator Representation as Text: Towards an Ethnography of Legal Discourse’

Answer 16

They said Johnson ran a red, and he said he didn’t, they pulled him over into the gas station, they searched his car, he refused a pat down search and said to the officers that he doesn’t respect them. They arrested him and charged him with being disorderly. He said what the officers did was illegal because they didn’t have a right to search him for running a red light.

What went wrong when it came down to communication between Johnson and his lawyer Cunningham?
o Sense of being patronized. The students and professor Cunningham were stereotyping.
o A suppression motion was brought up without the client’s consent.
o They met with Mr. Johnson in a big boardroom, and they were recording it, so it felt like an interrogation, the client feels uncomfortable revealing what they need.

Lawyers translate what a client is trying to say. they take what a client is saying and take out the irrelevant parts and only mention the parts that help the case. But in this case, the lawyers went too far with this. A good translator shouldn’t alter or change what the client is saying without their consent.

Question 17

John v Macdonald, 2015 ONSC

Answer 17

• John suffers from schizophrenia, and MacDonald was his lawyer.
• Whether it was pro bono or not. John thought it was pro bono and the lawyer didn’t. There wasn’t a written retainer. MacDonald said it was pro bono to the other side as a tactic and because of this, John’s case that it was pro bono became stronger. The court leans towards the client’s side because the is a power and experience imbalance. It’s the lawyers job to make sure the client understands what’s happening. So that’s why lawyers should always have it in writing.

Question 18

Newell v. Sax

Answer 18

• They don’t talk about fees. He put in around 75 hours of docket time (but it’s an estimate). He then decides to send her a bill of a high price and she doesn’t want to pay it. The assessment officer said he should get paid but knocked 20% off.
• Take away for this week for this case is that you should always communicate fees and have it in writing.

Question 19

[11] The commentary to Rule 3.6 of the Law Society of Ontario’s Rules of Professional Conduct, effective October 1, 2014, states:

Answer 19

A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined. [Emphasis added.]