Annotations to Chapter 7 – Relationship to the Society and Other Lawyers

Annotations to rule 7.1-2  Meeting financial obligations

A debt owed to the bank for a line of credit used to finance a lawyer's practice does not constitute a practice debt under the rule.  [PCH]
EC December 1999, item 10

The rule does not require a lawyer to pay an account where there is a bona fide legal dispute about the obligation to pay.  [PCH]
EC September 1996, item 7

A firm's partners do not have an ethical obligation to ensure that the rent is paid on a lease entered into by the firms management company.  [PCH]
EC January 1994, item 7

An undertaking given by a solicitor in a trial certificate or notice of trial cannot be an unconditional promise that the solicitor will underwrite the government imposed cost of his client’s right to a courtroom. A solicitor of record who signs such a form, does no more than give a required, if superfluous, promise on behalf of his client. The lawyer does not have a personal responsibility to pay.  [PCH]
Campbell Inc. v. Towers, 2006 BCSC 1030

Annotation to rule 7.1-3  Duty to report

A lawyer is obliged to report another lawyer's breach of undertaking, which has not been consented to or waived by the recipient of the undertaking, to the Law Society even if the undertaking is expressed as a trust condition.  [PCH]
EC September 1996, item 6

Annotation to rule 7.2-1  Courtesy and good faith

A lawyer’s general duty of courtesy and good faith to all persons with whom the lawyer has dealings may require a lawyer to extend certain courtesies to self represented persons similar to those accorded to lawyers. However, the requirements of commentary [5] are standards to which lawyers should aspire as much as possible when dealing with self represented litigants, not standards to which they are bound.
EC April 2014, item 5

Annotations to rule 7.2-3  Courtesy and good faith

Rule 7.2-3 does not contain a specific exemption to permit a lawyer to record the conversation of another lawyer where the lawyer has reasonable grounds to believe the other lawyer will commit or indicate an intention to commit a criminal offence in the way that the old rule, Chapter 11, Rule 14.1 of the Professional Conduct Handbook, did. However, it would be reasonable to imply the exception to the new BC Code rule 7.2-3 in appropriate circumstances and it is unnecessary to amend the rule to describe this particular exception expressly.
EC June 2013, item 6

As the CBA Code prohibits recording conversations with anyone without first informing the other person of the intention to do so, it is improper for a member to tape record a non-member in a situation where the member will subsequently be a witness against the non-member.  [PCH]
EC June 1993, item 6

Annotations to rule 7.2-4  Communications

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

Annotation to rule 7.2-5  Communications

Non-practising lawyers who provide services to clients (without fee) have the same obligations as practising lawyers with respect to representing clients and generally carrying on practice. This includes the obligation to reply to communications from other lawyers, to provide competent services, and to be reasonably accessible to clients and others who contact the lawyer in connection with the representation.  [PCH]
EC December 2003, item 5 

Annotations to rule 7.2-6  Communications

It is not improper for a lawyer for a defendant to engage a private investigator to conduct surveillance on a plaintiff that includes conducting conversations with that party concerning matters relevant to that plaintiff’s claim, provided the investigator does not attempt to negotiate with the plaintiff or deal with her in any way concerning the claim.  [PCH]
EC December 2006, item 2

A lawyer may instruct private investigators to gather evidence relevant to a litigation provided any communications from the investigators to employees of the opposing party are not in the nature of settlement discussions.  [PCH]
EC October 2005, item 7

A lawyer represented two plaintiffs (A and B) in a motor vehicle accident case. The minor plaintiff (B) had a guardian ad litem (C) who was B's father and A's husband. Defence counsel wanted to contact C directly to discuss A's case, but not the case in which C acted as guardian ad litem for his daughter. The litigation arose from a single set of facts, contained in a single action. Defence counsel must therefore comply with Chapter 8, Rule 12 of the Professional Conduct Handbook.1 in order to contact a co-plaintiff, that is, through or with the consent of the party's lawyer.  [PCH]
EC September 2003, item 7

Chapter 4, Rule 1.1 of the Professional Conduct Handbook must be read as subject to s. 5 of the Freedom of Information and Protection of Privacy Act. For that reason, it is proper for lawyers to make freedom of information requests directly to a public body even where the public body is represented by a lawyer, and not through the lawyer representing the public body.  [PCH]
EC March 28 2001, item 6

A lawyer is not obligated to dissuade a client in a civil matter from talking to the other side, and may give a client advice about such a contact. However, the lawyer may not plan and direct such a contact for the purpose of avoiding Chapter 4, Rule 1.1 of the Professional Conduct Handbook.  [PCH]
EC November 1999, item 9

Where Lawyer B has declined to pass on Lawyer's A's settlement proposal to Lawyer B's client unless Lawyer A pays Lawyer B's outstanding account, Lawyer A may contact Lawyer Bs client directly by giving reasonable notice to Lawyer B of his intention to contact the client.
EC April 1996, item 5; decided under rescinded Chapter 8, Rule 11 of the Professional Conduct Handbook.  [PCH]

Prior to certification of a class proceeding, a lawyer for a defendant may approach someone who is potentially a member of a class, unless that person is personally represented by a lawyer.
EC November 1995, item 4; decided under rescinded Chapter 8, Rule 11 of the Professional Conduct Handbook.  [PCH]

Where the court has imposed an order on an accused to have no contact with the complainant, that order does not prevent the accused's counsel from contacting the complainant unless the order expressly so provides. However, it would be most unwise for counsel to interview the complainant directly. If it was considered necessary to interview the complainant, a private investigator or another counsel should conduct the interview.  [PCH]
EC April 1995, item 10

A lawyer was involved in a dispute over her account with a former client who was represented in the dispute by other counsel. The lawyer had settlement discussions with the former client in the absence of other counsel without that counsel’s consent. The panel held that notwithstanding the fact that the lawyer was also a party to the matter, since her account was disputed, her discussion with her former client contravened rule 7.2-6 and constituted professional misconduct.
2014 LSBC 35

Annotations to rule 7.2-8  Communications

Former members of a Board of School Trustees are witnesses rather than parties to litigation involving the Board where there are no facts that indicate that the former trustees have authority to bind the Board in the litigation, have responsibility to implement the advice of the Board's lawyer, or have their own interests at stake in the matter.  [PCH]
EC October 2000, item 12 

In determining whether a former employee of a corporate litigant is a party to the proceedings or a witness, the fact that the corporation intends to produce that former employee as the person to be examined for discovery on behalf of the corporation requires a lawyer acting for a party adverse in interest to treat the former employee as a party.  [PCH]
EC November 1994, item 8

Annotations to rule 7.2-9  Communications

It is improper for a lawyer to witness a signature as an officer under s. 43 of the Land Title Act where the person signing the document appears to the lawyer through the use of live interactive videoconferencing.  [PCH]
EC March 2000, item 6 and November 30, 2000 item 2

The minimum obligations of a lawyer acting as witness to a borrower's signature under s. 43 of the Land Title Act and Appendix 1, Rule 2 of the Professional Conduct Handbook are: to identify himself or herself as a lawyer; to verify the identity of the borrower in accordance with s. 43 of the Land Title Act; and to advise the borrower that the lawyer is not protecting the borrowers interests.  [PCH]
EC April 1996, item 10

Annotations to rule 7.2-10  Inadvertent communications

Where spouses have separated, a lawyer acting for the wife must return to the husband's lawyer unopened mail addressed to the husband at the former matrimonial home, where the mail is in the lawyer's possession. Opened mail left at the home by the husband does not trigger an obligation under Chapter 5, Rule 15 of the Professional Conduct Handbook.  [PCH]
EC October 2008, item 3

The purpose of Chapter 5, Rule 15 of the Professional Conduct Handbook is to correct some slip or error made on the part of a lawyer or another person in safeguarding or transmitting documents. It is not designed to protect lawyers from mistakes of judgment they may make in reviewing documents to determine whether they are disclosable.  [PCH]
EC January 2008, item 3

A lawyer’s client, the wife in divorce proceedings, had access to her husband’s email which contained evidence of undisclosed assets and income. Her husband had given her the password to two email accounts, but had subsequently changed only one. The client provided the emails to the lawyer from the account where the husband had given the wife the password.  The lawyer did not have an obligation to turn over the emails in question to the husband or his lawyer because the husband had provided his wife with the password. Any information obtained from an account where the husband had changed the password and not provided it to the wife would trigger an obligation under Chapter 5, Rule 15 of the Professional Conduct Handbook.  [PCH]
EC December 2006, item 3

A lawyer acted for a client who purchased a strata lot. A portion of the building was in dispute between the client and the strata corporation, with the client claiming that a storage area constituted part of his strata lot. After raising the issue on behalf of the client with the strata corporation, the client found a binder of documents in a closet in the living area of his unit. The binder included letters from the strata corporations lawyer regarding the dispute. Some of the documents were likely privileged and were not intended for the lawyer or his client to see. Chapter 5, Rule 15 of the Professional Conduct Handbook required the lawyer to return the material to the strata corporation or its lawyer. After returning the documents, the lawyer was free to apply to the court to have the documents produced to him on the ground that privilege was lost as a result of their disclosure and they should be available to the lawyer's client for use in proceedings to resolve the dispute. If the client's instructions prevented the lawyer from carrying out his obligations under Rule 15, the lawyer must withdraw.  [PCH]
EC October 2006, item 10

Chapter 5, Rule 15 of the Professional Conduct Handbook does not prevent lawyers from disclosing the contents of inadvertent disclosures to their clients where they have read the document before realizing it is sent in error. In these circumstances, the ordinary obligation that lawyers have to provide relevant information to their clients must prevail.  [PCH]
EC February 2006, item 4

The parties negotiating a separation agreement were living in separate residences. Their child innocently obtained a copy of the husband's notes to his lawyer about the agreement and brought them to the wife's home. The wife's lawyer was required to return the notes in accordance with Chapter 5, Rule 15 of the Professional Conduct Handbook. The husband would have had a reasonable expectation of privacy about the notes and they were released in error.  [PCH]
EC October 2004, item 6A

A copy of a document obtained from premises to which a person has access does not have to be returned to the owner when no steps had been taken to secure the document.  [PCH]
EC October 2004, item 6B

A party's expectation of privacy regarding a document will depend on the steps taken to secure it. When that issue is in dispute, the lawyer who has received the document must return it. That does not prevent the lawyer from later seeking its disclosure on the basis of relevancy.  [PCH]
EC October 2004, item 6C

If client instructions prevent a lawyer from carrying out the lawyer's duty under Chapter 5, Rule 15 of the Professional Conduct Handbook, the lawyer must follow the client's instructions but may not act for the client any further in the matter.  [PCH]
EC September 1999, item 8

Where there is a restraining order preventing the father in a matrimonial matter from contacting the mother (the lawyer's client), there is no obligation on a lawyer to return a document given to her by the father addressed to the children of the lawyer's client.  [PCH]
EC May 1997, item 10

A lawyer acted for an employer. Trade Union 1 was the bargaining agent for its employees. Another lawyer represented Trade Union 2, which was attempting to supplant Trade Union 1 as the bargaining agent for the employees and was seeking remedies against the employer for unfair labour practices. Trade Union 2 obtained a copy of a letter from the employer marked confidential and sought advice from its counsel concerning the employer's legal rights and responsibilities given Trade Union 2's activities. The second lawyer was obliged to follow all the requirements of Chapter 5, Rule 15 of the Professional Conduct Handbook, including return of the letter.  [PCH]
EC April 1997, item 5

Annotations to rule 7.2-11  Undertakings and trust conditions

It is improper to attempt to impose on other counsel an undertaking that prevents that counsel from obtaining adequate client instructions.
EC March 2012

A lawyer who sends a blacklined document to another lawyer, in the absence of language to the contrary, neither undertakes nor represents that the blacklined document accurately shows the changes made to it A lawyer in such circumstances simply represents that he or she believes, in good faith, that the blacklined version correctly describes proposed changes to the document.  [PCH]
EC June 2009, item 7

In order to discourage the fraudulent use of trust cheques it is proper to mark them as:
(1) "for deposit only by payee – not negotiable" and
(2) "not payable more than x days (say 60 days) after date." [PCH]
EC June 2009, item 8  

Where a lawyer acquires a document from a party adverse in interest that the lawyer has reason to believe was not genuine and that could be used for a fraudulent purpose if it is returned, it would be improper for the lawyer to release the document unless the release is pursuant to a court order or an agreement between the parties that ensures the document is not used for a fraudulent purpose.  [PCH]
EC September 2008, item 3

A lawyer who routinely declines to accept the standard undertakings contained in client contracts that have been negotiated prior to the lawyer's involvement in the matter places each client at risk of losing the benefits of the client's contract and may be practising negligently.  [PCH]
EC April 2008, item 3

A lawyer’s client, when unrepresented, agreed to receive documents relevant to an inquest being conducted with respect to the death of her sister on certain conditions. The lawyer acting for her subsequently cannot act inconsistently with the conditions agreed to by his client, although he is free to take legal action on her behalf to attempt to secure access to the relevant documents on more favourable conditions.  [PCH]
EC January 2007, item 7

If there is no agreement between the parties that a lawyer will provide a certified trust cheque in payment of an amount due, it is proper for a lawyer to impose an undertaking on another lawyer that it be certified. A lawyer may have sound business reasons for seeking the certification of a trust cheque, and it may be simpler for the lawyer drawing the cheque to attend to its certification than for the lawyer receiving it to do so. Although the lawyer on whom the undertaking is imposed may properly refuse it if there is no contractual requirement to accept it, it is not unreasonable or otherwise improper for a lawyer acting in good faith to attempt to impose such an undertaking. [See also footnote 1 of Chapter 11 of the Professional Conduct Handbook, effective 09/07]   [PCH]
EC September 2, 2004, item 4

It is proper for a lawyer to issue a cheque to another lawyer on a pre-arranged undertaking that the cheque will not be cashed until confirmation is provided that the cheque can be negotiated.  [PCH]
EC December 1997, item 7

Lawyers who receive funds from clients to pay disbursements owed to a creditor for the client's case, in the absence of an agreement to the contrary, must use the funds to pay the creditor forthwith. A failure to do so amounts to unprofessional conduct.  [PCH]
EC July 1997, item 3

Where a debtor sends a cheque to a creditor's lawyer for a lower amount than the creditor claims, advising the lawyer that the cashing of the cheque by the creditor relieves the debtor of an obligation to pay a higher amount, it is sharp practice for the lawyer to cash the cheque and then accept instructions to pursue the additional amount.  [PCH]
EC May 1996, item 8

The holdback provisions of the Builders Lien Act do not take precedence over an undertaking unless the undertaking expressly contemplates that they do so. An undertaking takes precedence over a common law right to setoff.  [PCH]
EC April 1995, item 8

Case law

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

A lawyer gave an undertaking to discharge a mortgage in 1997, but the undertaking was silent as to the time by which it had to be discharged. A complaint was made to the Law Society in 2001 because the mortgage had not been discharged. The Law Society found the lawyer guilty of professional misconduct for having failed to discharge the undertaking, and the Court of Appeal agreed with that decision. His cavalier approach to the fulfillment of undertaking provisions had no place in the practice of law. [see also Law Society Rule 3-89 re lawyers' obligation to report failure to cancel mortgage]  [PCH]
The Law Society of BC v. Heringa 2004 BCCA 97

Annotations to rule 7.2-12 Trust cheques

Where the recipient delayed cashing a lawyer’s cheque for 6 months where that delay may have occurred so that the recipient could gain an advantage as a creditor in a Companies Creditors Arrangement Act process, the delay is not a “most unusual and unforeseen circumstance” under Chapter 11, Rule 8 of the Professional Conduct Handbook that justifies the lawyer in cancelling payment of the cheque.
2014 LSBC 44

In Chapter 11, Rule 8 of the Professional Conduct Handbook the promise that a cheque will be honoured is not unconditional and, depending on the circumstances, the lawyer may choose not to honour the cheque. Accordingly, a solicitor’s trust cheque does not constitute an undertaking. [PCH]
Willson v. Angela Gibson Law Corp., 2008 BCSC 1081

Annotation to rule 7.4-1  Standard of conduct

A lawyer who is elected to a city council is prohibited from representing a client involved in litigation with the city.  [PCH]
EC December 1996, item 12

[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.