PR Flashcards
What is the bright line rule and what is the exception?
A lawyer cannot act for a client whose interests are directly adverse to the immediate legal (as opposed to corporate) interests of another client unless the clients consent. This applies even if work done for the two clients are unrelated. (Think of CNR v McKercher LLP)
However, the bright line rule does not apply where it is unreasonable for a client to expect that the lawyer’s law firm will not act against the client in unrelated matters. This typically arises with large national or international law firms, like the firms on Bay St.
What is a conflict of interest and when can a lawyer act when he or she is in a conflict.
A conflict of interests exists when there is a “substantial risk” that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by the lawyer’s own interest, or the lawyer’s duty to another client, a former client, or a third party. “Substantial risk” means that the risk is significant and plausible, but less than certain or probable.
Where the lawyer obtains each affected client’s fully informed and fully voluntary consent and the lawyer reasonably believes that he is able to represent each client without having material adverse effects on the client, then the lawyer can act where there is a conflict of interest.
CPD hours
- One hours per month that the lawyer practices (i.e. 12 hours per year if the lawyer practices all year)
- At least 25% (i.e. a minimum 3 hours if the lawyer is practicing for the whole year) must be professionalism hours, which covers topics like ethics, practice management, skills, and appropriate attitude. Between January 1, 2008 - December 31, 2020 at least 3 of these professionalism hours must address equality, diversity, and inclusion training. After December 31, 2020, at least 1 of these professionalism hours must address equality, diversity, and inclusion training.
- At most 75% (i.e. up to 9 hours if the lawyer is practicing for the whole year) must be substantive hours.
Mandatory withdrawal
A lawyer can only withdraw from representation where there is good cause to do so and on reasonable notice to the client. Subject to the rules about criminal proceedings, there are three situations that represent a good cause where the lawyer must withdraw:
- The client discharged the lawyer, regardless of why
- The client’s instructions require the lawyer to act contrary to the Rules or by-laws under the Law Society Act; or 3
- The lawyer is not competent to continue to handle the matter
Optional withdrawal
A lawyer can only withdraw from representation where there is good cause to do so and on reasonable notice to the client. Subject to the rules about criminal proceedings, the Rules identify two situations where withdrawal is permitted, but optional.
- There has been a serious loss of confidence between the lawyer and the client; or
- After reasonable notice, the client fails to provide a retainer or pay the lawyer’s fees or disbursements and no serious prejudice to the client would result. Where serious prejudice would result, the lawyer must continue to act even if he or she remains unpaid.
Withdrawal from criminal proceedings
A lawyer acting for a client in a criminal matter may withdraw for an adequate reason (which includes non-payment of fees) if the interval of time between the withdrawal and the start of trial (where an adjournment of the trial date is not possible without harming the client’s interest) is enough for the client to obtain other representation and for that new representative to adequately prepare for trial.
However, if the interval is not enough and the adequate reason for withdrawal is for some reason other than non-payment of fees, the lawyer may withdraw with permission of the court. The lawyer should also try to adjourn the trial, unless instructed otherwise by the client.
Microaffirmations. What are some examples?
Simple, everyday behaviours that can pre-empt microaggressions, like proactively asking a client what pronoun they use or ensuring that one does not book meetings on religious holiday
Definition of a client
- A person who consults a lawyer and the lawyers provides or agrees to provide legal services, which includes legal advice, regardless of environment. Offering legal advice at party can create a layer-client relationship; or
- A person who consults with a lawyer reasonably believes that the lawyer has agreed to render legal services, even if no legal services were actually rendered or any promise to render services given
What is a CSO?
A registered charity under the Income Tax Act, a not-for-profit corporation incorporated in Ontario, or an not-for profit corporation permitted under the laws of Ontario to operate in Ontario.
When must a lawyer disclose confidential information about a client?
- When required by law;
- When required by an order of a “tribunal of competent jurisdiction”;
- The Law Society;
- When a organization engages in, or intends to engage in, dishonest, fraudulent, criminal, or illegal behaviour, the lawyer must following the disclosure procedures and go up the chain of command;
- When the lawyer reasonably believes that a dangerous situation is likely to develop at a court facility, the lawyer must notify the persons having responsibility for security at the facilities and give particulars, but not enough particulars to breach further client confidentiality, and should also notify other lawyers are expected to be at the court facility for the client’s proceedings;
When may a lawyer disclose confidential information about a client?
- Where there is an imminent risk of death or serious bodily harm and disclosure is necessary to prevent the death or harm;
- To defend against certain allegations or claims against the lawyer or lawyer’s associates or employees;
- To establish or collect fees;
- To secure legal advice from another lawyer about a proposed course of conduct; or
- Detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes to the composition or ownership of the firm.
When a conflict of interests exists because of a personal relationship between the lawyer and the client, is the conflict imputed onto the lawyer’s firm?
No. The conflict can be cured if another lawyer in the firm without a personal relationship with the client handles the client’s matter without the involvement of the original lawyer.
In what chapter would you find information about whether a lawyer can provide a guarantee or security for a debt for a client
Chapter 6 - conflicts; section 11.7 if you want to be precise.
Is there anything a lawyer should advise a client that intends to pay the lawyer for legal services by transfer of an interest in property other than a non-material interest in a publicly traded company
In what chapter is this found?
The lawyer should recommend ILA
Note that this information is found in chapter 6 conflicts of interest (section 11.6) and not in the chapter on fees
In what chapter would you find rules regulating the lawyer when the lawyer is involved in a transaction with a client?
Chapter 6 - conflicts; section 11 if you want to be precise
In what chapter would find the disclosure requirements for a lawyer in an affiliation to a client before accepting to provide joint services
Chapter 6 - conflicts; section 12.2
Can a lawyer prepare a will that gives the lawyer or the lawyer’s partner or associate a gift or some other benefit?
No, unless the client is a family member of the lawyer or the lawyer’s partner or associate
Is a clause in a will that states that the lawyer who prepared the will must also administer the will binding?
No. And the lawyer, before accepting the retainer of the trustees of the will, must advise the trustees in writing that the clause is not binding.
What should a lawyer do if he receives a medical-legal report from an expert and the expert specifies that the client should not see it
Return it to the expert immediately, unless the client has provided consent to the lawyer to receive the report on that condition
