Annotations to Chapter 5 – Relationship to the Administration of Justice

Annotations to rule 5.1-1  Advocacy

In the absence of a valid objection, lawyers have a positive duty to sign court orders that have been granted or agreed to, notwithstanding subsequent instructions of the client to the contrary.
EC March 2012

Where a court or tribunal has made a without notice order, and the lawyer who obtained the order later learns of material facts adverse to the interests of the lawyer’s client, the lawyer must make timely disclosure of those facts to the tribunal that granted the order.  [PCH]
EC June 2011, item 4 

A lawyer was found guilty of professional misconduct by improperly withdrawing from a criminal trial and abandoning his client in mid-trial, and by being discourteous and disrespectful to the court. [PCH]
DD 2008 No. 1 March
2007 LSBC 55

Lawyers have a right and, arguably, a duty to criticize tribunals in some circumstances but such criticism must be measured against the public’s reasonable expectations of the lawyer’s professionalism. [PCH]
Joseph Groia v. The Law Society of Upper Canada, 2015 ONSC 686 (CanLII) – 2015-02-02, CanLII - 2015 ONSC 686 (CanLII)
Law Society of Upper Canada v. Groia, 2012 ONLSHP 94, 2013 ONLSAP 41, CanLII - 2013 ONLSAP 41 (CanLII)
Dore v. Barreau du Quebec, 2012 SCC 12, CanLII - 2012 SCC 12 (CanLII)

Annotations to rule 5.1-2  Advocacy

A lawyer has an ethical duty to exercise due diligence to ensure that a client makes the disclosure of documents required by the Rules of Court. That duty is not altered by the change from old Rule 26(1) to new Rule 7-1(1) in the Rules, although the standard to which the client must conform is different under the new rule.  [PCH]
EC April 2010, item 3

A lawyer cited cases from Australia in an arbitration hearing. After evidence and submissions were closed, the lawyer discovered a decision in which the Australian Court of Appeal rejected exactly the same argument he had advanced in the arbitration. He was obliged to bring the relevant case to the attention of the arbitrator before the arbitrator had rendered a decision. It was appropriate to request an opportunity to present argument at the same time.  [PCH]
EC April 2002, item 6

It is improper for a lawyer to threaten to commence civil proceedings if the lawyer is unable to make an argument in good faith that the client's claim would be compensable by a court.  [PCH]
EC October 1996, item 9

It is not proper for a lawyer to assist a client to achieve a settlement that attempts to prevent a person from making a criminal complaint.  [PCH]
EC May 1996, item 7

Professional Conduct Handbook, Chapter 1, Rule 1(1), Chapter 1, Rule 1 and Chapter 8, Rule 1(b) together impose a duty on a lawyer to decline to assist a client who the lawyer knows is making false representations to a regulatory authority. In this context, the word knows bears the ordinary meaning it has in criminal and tort law and includes constructive knowledge. Where the lawyer has no knowledge that the representations of the client are false, there is no duty on the lawyer to verify the accuracy of information given to a regulatory authority. However, where a lawyer has information that arouses suspicion about the accuracy of facts the client has given, the lawyer has an obligation to ensure the facts are accurate before making a submission containing those facts to a regulatory body.  [PCH]
EC April 1996, item 9

The plaintiff in personal injury litigation died intestate shortly after judgment was pronounced, the order reflecting the judgment had not yet been entered, there were outstanding matters to be resolved, and no administrator had been appointed. The plaintiff's counsel was under an ethical obligation to notify both the court and opposing counsel of his client's death.  [PCH]
EC April 1994, item 5

Where the issue of liability has been settled and where the issue of quantum is to be argued, and where the plaintiff in the matter dies, a lawyer acting for the plaintiff has a duty to inform both the clerk of the court and opposing counsel of the plaintiff's death.  [PCH]
EC March 1993, item 7

A lawyer who provides drafting assistance to an otherwise self-represented litigant should be allowed to rely on that litigant’s representation of the facts, unless the lawyer has reason to believe the representations are false or materially insufficient.  [PCH] 
Recommendation 7 of Report of Unbundling of Legal Services Task Force p. 20; approved by Benchers April 2008

A lawyer who permitted her personal financial interest in her client’s business to overcome her professional judgment in attempting to obtain a court order she knew she did not have approval to seek was guilty of professional misconduct.
2014 LSBC 55
2013 BCCA 8
2010 LSBC 29

A lawyer was found guilty of professional misconduct in assisting a client to avoid a court ordered payment of a family support obligation by accepting the client’s instructions to hold the client’s support payment in trust when the lawyer knew or ought to have known he was facilitating a breach of a court order.
2013 LSBC 18

A lawyer's failure to fully disclose certain information to the court was not a deliberate attempt to mislead; however, he did mislead and his conduct amounted to professional misconduct.  [PCH]
2005 LSBC 45

The integrity of a signed document is fundamental to the practice of law and the preservation of the rule of law. An executed document cannot be altered without authority. To alter a document executed on behalf of Her Majesty the Queen in the Right of the Province of BC without authority, and causing it to be filed in the Land Title Office constitutes professional misconduct.  [PCH]
2004 LSBC 14

It is professional misconduct for a lawyer to intimidate witnesses from giving evidence, and to seek laying of charges against the witnesses for the purpose of preventing them from coming to Canada to give evidence in court.  [PCH]
DCD 01-06

A lawyer, who acted as director, shareholder and solicitor of a VSE-listed company, failed to exercise sufficient care preparing and avoiding inaccuracies in a Statement of Material Facts relating to a securities offering by the company. He was found guilty of professional misconduct.  [PCH]
DCD 92-1

Annotations to rule 5.1-5  Courtesy

A lawyer became involved in verbal altercations with attendants of a towing truck tow yard when his client’s car was impounded in the yard. He called police and stated “talk to these idiots because otherwise you’ll have to send a police officer probably to arrest me because I’m going to go get a crowbar and smash up the place.” The statement was overheard by an employee of the tow yard. A majority of the Review Board found that, although this statement was not meant to be a threat, it was a marked departure from the standard of conduct the Law Society expects from its members and constituted professional misconduct.
2015 LSBC 45

A lawyer stated to a social worker whom he did not know that he should “shoot her” because she “takes away too many kids.” The comment was made inside a courthouse (but outside a courtroom) with other persons present. The social worker felt threatened by the comment; the lawyer said it was a poor attempt at a joke. The Review Board upheld the decision of the hearing panel that the remarks constituted a marked departure from the conduct the Law Society expects of lawyers.
2015 LSBC 34 

A lawyer was found guilty of professional misconduct for using profanity in circumstances where he was provoked. The majority was of the view such conduct would never be excusable. The minority, while agreeing that the use of profanity in these circumstances was inexcusable, left open the question whether it might excusable in different circumstances.
2014 LSBC 08

A lawyer who made arrogant, unnecessary and excessively abusive remarks to another lawyer that go beyond mere rudeness or discourtesy was found to be guilty of professional misconduct.
2013 LSBC 25 

Annotations to rule 5.1-6 Undertakings

When it is necessary to interpret the language of an undertaking, the undertaking is to be construed by reference to the intention of the parties, which is to be deduced from the writing itself and the circumstances in which it was given. When a party argues that a term should be inferred in the undertaking, the term must be “sufficiently certain and notorious and so generally acquiesced in that it might be presumed to form a part of the understanding between the parties” [PCH]
Deutschmann (Guardian ad litem of) v. Fallis, 2010 BCSC 952

Absent an order of the Court, there is an implied undertaking on a recipient of a “Stinchcombe package” from the Crown not to disclose its contents for any collateral purpose. [PCH]
Wong v. Antunes, 2009 BCCA 278

There is an implied undertaking by parties in a civil litigation to keep information obtained in the discovery process confidential. A party to the proceeding may not use the evidence for any other purpose than that required for the conduct of the litigation, and may not share it with others outside of this purpose without leave of the court. [PCH]
Juman v. Doucette, 2008 SCC 8

Annotations to rule 5.1-5  Advocacy 

In a letter to the lawyer representing the husband of his client, a lawyer used the words “odalisque” and “courtesan” to refer to a lady who was alleged to be living in an adulterous relationship with the husband of his client. Although the use of such words in this context is unintelligent and inexcusable, it does not amount to professional misconduct. [PCH]
2011 : No. 4 Winter
2011 LSBC 30

A lawyer was found guilty of professional misconduct for posting comments on the internet and sending a fax to another lawyer containing discourteous and personal remarks about that lawyer. [PCH] 
DD 2012 No. 1
2011 LSBC 29

A lawyer’s correspondence with an unrepresented litigant in which the lawyer critiqued the litigant’s correspondence and engaged in name-calling and personal criticism amounted to professional misconduct. [PCH]
DD 2009 No. 1 April
2008 LSBC 31

Annotations to rule 5.2-1 Submission of evidence

Where there is a strong chance that a lawyer will be obliged to give evidence if the matter proceeds to trial, it would be improper to continue as counsel unless other counsel is ready to assume conduct of the matter without interruption if the lawyer's evidence is required.  [PCH]
EC September 30, 2004, item 6

A lawyer who is a shareholder in a company is not prohibited from appearing on the company's behalf without fee and as a shareholder, not as a lawyer. In such circumstances, the lawyer is not bound by Chapter 8, Rule 9 of the Professional Conduct Handbook.  [PCH]
EC September 1997, item 9

Case law

While it is highly undesirable for counsel to wear the cloak of both advocate and witness, the client has the right to have his counsel testify as a witness. The Professional Conduct Handbook does not extend the prohibition of a lawyer from giving evidence to the lawyer’s partners or associates. In Phoenix v. Metcalfe, (1974) 48 D.L.R. (3d) 631 the Court of Appeal found no impropriety where a client of the partner’s counsel took the stand. [PCH]
Insurance Corp. of British Columbia v. Suska, 2007 BCSC 1838

The plaintiff sought damages against the defendants for wrongful dismissal. A. was counsel for both defendants. He was also a member of the first defendant and held executive positions within it. The plaintiff wanted to examine A. for discovery and brought an application to enjoin A and his firm from representing the defendants. The court noted two ground to the application: first that A was nominated as a witness and second, that A had a membership (and executive interest) in one of the defendants. The court found that the first issue was not relevant because A had not yet given viva voce or affidavit evidence. As for the second issue, membership alone was not enough to restrict legal services. The membership interest must reasonably be expected to affect the lawyer's professional judgment. The plaintiff had not proven that fact and the application was dismissed.  [PCH]
Jacks v. Victoria Amateur Swim Club 2003 BCSC 845

The court granted an order restraining a lawyer and his firm from acting for the plaintiffs on the ground that he was both a party and an essential witness. The lawyer and the law firm were defendants by counterclaim in the same action. The defendants alleged that the lawyer and firm had a long history of involvement with the plaintiffs and the defendants and that they were in breach of trust with respect to certain funds held by them on behalf of the defendants. The court should be slow to interfere with a litigants right to choose his own counsel, but since the trial had not commenced, the plaintiffs would not be prejudiced by the removal.  [PCH]
Fraresso v. Wanczyk (11 May 1995), Vancouver, No. C944090, (B.C.S.C.)

Annotations to rule 5.2-2 Appeals

The mere potential that a lawyer acting as counsel at a trial will be called as a witness at the trial is not a sufficient basis to disqualify the lawyer. The appropriate time to bring an application to disqualify counsel is once it becomes apparent that the lawyer will be required as a witness at the trial. [PCH]
Gardner v. Viridis Energy Inc. , 2012 BCSC 19

Annotations to section 5.3  Interviewing witnesses

A lawyer must notify an opposing party’s counsel when the lawyer is proposing to contact an opposing party’s expert.
Benchers' Bulletin, Summer 2014 

It is not improper for a lawyer to request a witness to decline to talk to the other side unless he is present.  [PCH]
EC May 1997, item 8

Annotations to section 5.6-1 Encouraging respect for the administration of justice

Lawyers have a right and, arguably, a duty to criticize tribunals in some circumstances but such criticism must be measured against the public’s reasonable expectations of the lawyer’s professionalism. [PCH]
Dore v. Barreau du Quebec, 2012 SCC 12
Law Society of Upper Canada v. Groia, 2012 ONLSHP 94:

[BC Code] refers to an annotation that was created during the time the BC Code was in effect (from January 1, 2013) and is not based on or does not refer to a provision of the Professional Conduct Handbook.

[PCH] refers to an annotation to the former Professional Conduct Handbook, which was in effect from May 1, 1993 to December 31, 2012. Lawyers should consider the possible differences between the Handbook and the BC Code when determining the extent to which an annotation is still relevant.

EC refers to Ethics Committee minutes. For example, the reference "EC March 2005, item 6" refers to item 6 of the Ethics Committee minutes in March 2005.

DD refers to Discipline Digest. For example, the reference "DD 04-05" refers to discipline digest number five in 2004.

DCD refers to Discipline Case Digest. For example, the reference "DCD 01-27" refers to discipline case number 27 in 2001. (Note that in 2007 Discipline Case Digests were phased out and became Discipline Digests.)

LSBC refers to Law Society hearing reports. For example, the reference "2003 LSBC 20" refers to hearing report number 20 in 2003.

For more information on the annotated BC Code, see the Introduction to the Code of Professional Conduct for BC.