Regulation of the Legal Profession/LAwyers

Question 1

Self-Regulation

Answer 1

group controlled directly and governed by the rules and regulations created by that group. Lawyers- law societies, FLSC (federal law society of Canada), there are provincial law societies that lawyers must be licensed through, get power through provincial legislation. 2 main requirements: educational requirements (articles/bar) and “good character” requirement. law societies can discipline members for misconduct. Model Code (duties owed to clients, duties owed to profession and larger society)

Question 2

duties to clients

Answer 2

fiduciary relationship, must act honestly, duty to be competent, duty to avoid conflicts, duty to hold communications in confidence

Question 3

duties to profession and society

Answer 3

perserve public confidence in the legal profession. Act w integrity. show respect for the administration of justice. Legal services must be available to the public (poor and disadvanatged)

Question 4

Discipline

Answer 4

core component of self-regulation. to prevent lawyers from breaching standards of the occupation. Law societies have the authority to discipline “conduct unbecoming” and “Professional Misconduct” through delegated provincial powers. Harry Arthurs - 4 reasons for disciplining a lawyer.

Question 5

Harry Arthurs 4 reasons for disciplining a lawyer

Answer 5

1. guilty of theft, fraud, forgery, or other criminal offence
2. bc they violated fiduciary duty
3. unable to carry on practice bc of physical/mental disability/serious addiction
4. bc they failed to respond to an inquiry from the law society

Question 6

Disciplinary Hearings

Answer 6

1. Complaint/Investigation
2. Hearing
3. Penalty/Sanctions

Question 7

Other law society regulatory functions

Answer 7

Preventing unauthorized (licensed) ppl from practicing law.

Question 8

Time for Regulatory Change?

Answer 8

UK and Australia have moved from a self-regulation to co-regulation with the government, bc of a failure of law societies to act in the best public interests (pricing, etc)

Question 9

regulation in public interest

Answer 9

improving access to justice, better efficiency, transparency, effectiveness and accountability in regulations

Question 10

national approach to regulation

Answer 10

• FLSC, national mobility agreement 2013, model code of conduct, national requirement for common law degrees
• emergence of ABD (alternative business structures) in other common wealth countries, ABS are organisations that provide legal services as a part of a broad range of services and products offered. no uniform approach to regulating law firms

Question 11

new approach to regulation

Answer 11

legal regulatory bodies in Canada are considering a more proactive form of compliance regulation, to get law firms to adhere to best practices

Question 12

External regulation of Legal Profession

Answer 12

lawyer conduct regulated by the courts through suits brought on for malpractice, or professional liability
- lawyers owe fiduciary loyalty to their clients: loyalty, avoiding conflicts, and confidentiality
- lawyers should be competent.
- lawyers can be liable for contract and torts negligence simultaneously (Central Trust Co. v Rafuse [1986])
- lawyer may also be liable to third parties (executor to a will)
- lawyers can be held liable for breaches in fiduciary obligations

Question 13

Competent lawyer

Answer 13

3.1.1 of the Model Code - lawyer who has and applied relevant knowledge, skills, and attributes in a manner appropriate to each matter undertaken on behalf of a client

Question 14

Competence, Quality of Service, Candour

Answer 14

R v Neil - once a lawyer-client relationship is established a lawyer owes that client a sense of loyalty
- duty to avoid conflicts, confidentiality, provide competent advice and representation, and the duty to be candid and honest
-s.3.1 of the Model Code

Question 15

Central Trust Co. v Rafuse [1986] 2 SCR 147

Answer 15

• Leading MALPRACTICE case p39
• concurrent torts and contract liability
  3 main takeaways:
• 1. A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken
• 2. A solicitor is not required to know all the law applicable to the performance of a particular legal service, in the sense that he must carry it around with him as part of his “working knowledge”, without the need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points
• 3. An attorney is expected to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.

Question 16

Rules 3.1 (Competence) 3.2 (quality of Service) - Model Code

Answer 16

Rule 3.1-2
- suggests that even though there may be a breach of legal duty there may not be a breach of ethical duty

Question 17

Nova Scotia Barristers’ Society (NSBS) v Richey [2002]

Answer 17

• Richey charges w professional misconduct and professional incompetence for allegedly breaching the provisions of RUle 2, 3, 10, 13, and 14. failed in his duty to be competent to perform all legal duties pl