Duty to the Client

Question 1

what is a fiduciary?

Answer 1

A person who must act for another person with total trust, good faith and honesty. The paralegal-client relationship is a fiduciary-beneficiary relationship

Question 2

A paralegal’s legal opinion must be based on

Answer 2

sufficient knowledge of the relevant facts; an adequate consideration of the applicable law, process and procedure; and their own experience and expertise.

Question 3

A paralegal who learns that an organization that is their client has acted/is going to act fraudulently w respect to the matter for which the paralegal was retained must:

Answer 3

• advise the person who gives instrutions to the paralegal and the chief legal officer, or both the chief legal officer and the CEO that the conduct is/would be criminal/illegal/fraudulent and should be stopped

Question 4

What if the fraudulent activity by an organization persists?

Answer 4

The paralegal must advise progressively the next highest person/groups, ultimately including the board of directors/trustees, or the appropriate committee that the conduct is/was illegal/fraudulent and should be stopped, and

• if the conduct continues despite warnings, the paralegal must withdraw from representing the organization on that matter in accordance with Rule 3.08

Question 5

What must a paralegal do when they receive an offer for their client to settle?

Answer 5

They must explain to the client:
- the terms of the offer
- implications of accepting
-possibility of making a counter offer

Paralegal must not make/accept/reject an offer without advising the client on the offer and obtaining their clear and informed instructions.

Question 6

in relation to threating proceedings, a paralegal must not, without reasonable and lawful justification:

Answer 6

• threaten to initiate a proceed/charge for an offence; or
• threaten to make a complaint to a regulatory authority

Question 7

What if a client requests that a paralegal threaten an action/charge/complaint against the opposing side?

Answer 7

The client must be advised that the paralegal cannot comply with the request because threatening to make a charge/complaint is an abuse of court process/regulatory authority.

Question 8

When does the threat rule not apply

Answer 8

Where a complaint being made to a regulatory authority is reasonable and lawful

Question 9

What should a paralegal do when they suspect their client no longer has capacity to provide instructions?

Answer 9

They should make efforts to confirm the client’s capacity, and if the client no longer has capacity, the paralegal must take the appropriate steps to have a lawfully authorized representative appointed for the client

Question 10

What if a paralegal suspects that the client is under duress/subject to undue influence?

Answer 10

Before acting on the client’s instructions, the paralegal should satisfy themselves that the client is instructing freely, voluntarily, and is not under duress in giving the instructions. The instructions must reflect the client’s wishes and interests

Question 11

When should a paralegal order a medical legal report?

Answer 11

Only when the client instructs them to do so, and with the client’s written consent

Question 12

What is the concern with medical legal reports?

Answer 12

Paralegal has duty of honestly and candour: if the report is harmful to the client’s case, or contains information about the client’s condition they may not be aware of/understand without medical expertise, the paralegal should be cautious of ordering the report, and should be cautious of client reviewing the report

Question 13

What must the paralegal do in the case of an error/omission?

Answer 13

• promptly disclose errr to the client, being careful not to prejudice any rights of indemnity that either the paralegal or client may have under insurance, client protection, indemnity plan or otherwise
• recommend the client obtain independent legal advice to discuss their rights that may arise from the error
• advise the client that in the circumstances the paralegal may no longer be able to act for the client

Question 14

Why might a paralegal need to withdraw from representation in the instance of an error?

Answer 14

due to conflict of interest, where the paralegal may be tempted to put their own interests ahead of the clients

Question 15

The choice of official language is that of the…

Answer 15

client, not paralegal

Question 16

What CHarter section protects language rights?

Answer 16

Section 19(1)

Question 17

What part of the Criminal Code protects language rights?

Answer 17

Part XVII

Question 18

What must a paralegal do when holding client property as a retainer?

Answer 18

1/ promptly notify the client when the paralegal receives any money/property of the client, unless paralegal is satisfied that client is already aware

2/ clearly label property and place in safekeeping, ensuring it is easily identifiable

3/ maintain required records to identify and track property

4/ account for client property and deliver to client upon request/at end of retainer

5/ apply to a tribunal of competent jurisdiction for direction if the paralegal is unsure of the proper person to receive the client’s property

Question 19

Can paralegals hold any client property?

Answer 19

no, only property that is the subject of the legal services that the paralegal is providing to the client?

Question 20

What documents are returned to clients after a matter is finished?

Answer 20

All those that belong to the client, which normally include:
- all originals
- all copies for which the client has paid
- copies of letters requested and received by paralegal, paid for by client
- letter received by paralegal
- originals of letters from the paralegal to the client (if not already sent)
- copies of case law
- brief
- memoranda of law
- trial prep documents
- discovery and trial transcripts
- vouchers and receipts for disbursements
- experts reports, photos, other evidence