Chapter 3 – Relationship to Clients – annotated

Commentary

[1]  As a member of the legal profession, a lawyer is held out as knowledgeable, skilled and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal matters to be undertaken on the client’s behalf.

[2]  Competence is founded upon both ethical and legal principles. This Code rule addresses the ethical principles. Competence involves more than an understanding of legal principles: it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas of law in which the lawyer practises.

[2.1]  For a discussion of the correct procedure in swearing an affidavit or taking a solemn declaration, see Appendix A to this Code.

[3]  In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a particular matter, relevant factors will include:

(a)     the complexity and specialized nature of the matter;

(b)     the lawyer’s general experience;

(c)     the lawyer’s training and experience in the field;

(d)     the preparation and study the lawyer is able to give the matter; and

(e)     whether it is appropriate or feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

[4]  In some circumstances, expertise in a particular field of law may be required; often the necessary degree of proficiency will be that of the general practitioner.

[4.1]  To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer's practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer's duty to protect confidential information set out in section 3.3 (Confidentiality).

[4.2]  The required level of technological competence will depend upon whether the use or understanding of technology is necessary to the nature and area of the lawyer's practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is reasonably available, consideration should be given to factors including:

(a) the lawyer's or law firm's practice areas;

(b) the geographic locations of the lawyer's or law firm's practice; and

(c) the requirements of clients.

[5]  A lawyer should not undertake a matter without honestly feeling competent to handle it, or being able to become competent without undue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client. This is an ethical consideration and is distinct from the standard of care that a tribunal would invoke for purposes of determining negligence.

[6]  A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should:

(a)     decline to act;

(b)     obtain the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task; or

(c)     obtain the client’s consent for the lawyer to become competent without undue delay, risk or expense to the client.

[7]  The lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts.

[7.1]  When a lawyer considers whether to provide legal services under a limited scope retainer the lawyer must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. An agreement for such services does not exempt a lawyer from the duty to provide competent representation. The lawyer should consider the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyer should ensure that the client is fully informed of the nature of the arrangement and clearly understands the scope and limitation of the services. See also Code rule 3.2-1.1 (Limited scope retainer).

[7.2]  In providing short-term summary legal services under Code rules 3.4-11.1 to 3.4-11.4 (Short-term summary legal services), a lawyer should disclose to the client the limited nature of the services provided and determine whether any additional legal services beyond the short-term summary legal services may be required or are advisable, and encourage the client to seek such further assistance.

[8]  A lawyer should clearly specify the facts, circumstances and assumptions on which an opinion is based, particularly when the circumstances do not justify an exhaustive investigation and the resultant expense to the client. However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than mere comments with many qualifications.

[9]  A lawyer should be wary of bold and over-confident assurances to the client, especially when the lawyer’s employment may depend upon advising in a particular way.

[10]  In addition to opinions on legal questions, a lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, economic, policy or social complications involved in the question or the course the client should choose. In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client. The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.

[11]  In a multi-disciplinary practice, a lawyer must ensure that the client is made aware that the legal advice from the lawyer may be supplemented by advice or services from a non-lawyer. Advice or services from non-lawyer members of the law firm unrelated to the retainer for legal services must be provided independently of and outside the scope of the legal services retainer and from a location separate from the premises of the multi-disciplinary practice. The provision of non-legal advice or services unrelated to the legal services retainer will also be subject to the constraints outlined in the Law Society Rules and Code rules governing multi-disciplinary practices.

[12]  The requirement of conscientious, diligent and efficient service means that a lawyer should make every effort to provide timely service to the client. If the lawyer can reasonably foresee undue delay in providing advice or services, the client should be so informed.

[13]  The lawyer should refrain from conduct that may interfere with or compromise the lawyer's capacity or motivation to provide competent legal services to the client and be aware of any factor or circumstance that may have that effect.

[14]  A lawyer who is incompetent does the client a disservice, brings discredit to the profession and may bring the administration of justice into disrepute. In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’s colleagues.

[15]  Incompetence, negligence and mistakes – This Code rule does not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by this Code rule. However, evidence of gross neglect in a particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a failure, regardless of tort liability. While damages may be awarded for negligence, incompetence can give rise to the additional sanction of disciplinary action.

[[7.1] added 09/2013; [7.2] added 06/2016; [13] amended 10/2021; [4.1] and [4.2] added 03/2024; [2], [4.2], [7.1], [7.2], [11], [14] and [15] amended 11/2024]

Commentary

[1]  This Code rule should be read and applied in conjunction with section 3.1 (Competence).

[2]  A lawyer has a duty to provide a quality of service at least equal to that which lawyers generally expect of a competent lawyer in a like situation. An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service.

[3]  A lawyer has a duty to communicate effectively with the client. What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.

[4]  A lawyer should ensure that matters are attended to within a reasonable time frame. If the lawyer can reasonably foresee undue delay in providing advice or services, the lawyer has a duty to so inform the client, so that the client can make an informed choice about the client's options, such as whether to retain a new lawyer.

Examples of expected practices

[5]  The quality of service to a client may be measured by the extent to which a lawyer maintains certain standards in practice. The following list, which is illustrative and not exhaustive, provides key examples of expected practices in this area:

(a)     keeping a client reasonably informed;

(b)     answering reasonable requests from a client for information;

(c)     responding to a client’s telephone calls;

(d)     keeping appointments with a client, or providing a timely explanation or apology when unable to keep such an appointment;

(e)     taking appropriate steps to do something promised to a client, or informing or explaining to the client when it is not possible to do so; ensuring, where appropriate, that all instructions are in writing or confirmed in writing;

(f)      answering, within a reasonable time, any communication that requires a reply;

(g)     ensuring that work is done in a timely manner so that its value to the client is maintained;

(h)     providing quality work and giving reasonable attention to the review of documentation to avoid delay and unnecessary costs to correct errors or omissions;

(i)      maintaining office staff, facilities and equipment adequate to the lawyer’s practice;

(j)      informing a client of a proposal of settlement, and explaining the proposal properly;

(k)     providing a client with complete and accurate relevant information about a matter;

(l)      making a prompt and complete report when the work is finished or, if a final report cannot be made, providing an interim report when one might reasonably be expected;

(m)    avoidance of self-induced disability, for example from the use of intoxicants or drugs, that interferes with or prejudices the lawyer’s services to the client;

(n)     being civil.

[6]  A lawyer should meet deadlines, unless the lawyer is able to offer a reasonable explanation and ensure that no prejudice to the client will result. Whether or not a specific deadline applies, a lawyer should be prompt in prosecuting a matter, responding to communications and reporting developments to the client. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects.

[[4] amended 10/2021; [1] and [4] amended 11/2024]

Commentary

[1]  Reducing to writing the discussions and agreement with the client about the limited scope retainer assists the lawyer and client in understanding the limitations of the service to be provided and any risks of the retainer.

[2]  A lawyer who is providing legal services under a limited scope retainer should be careful to avoid acting in a way that suggests that the lawyer is providing full services to the client.

[3]  Where the limited services being provided include an appearance before a tribunal a lawyer must be careful not to mislead the tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances.

[4]  A lawyer who is providing legal services under a limited scope retainer should consider how communications from opposing counsel in a matter should be managed (see Code rule 7.2-6.1 (Communicating with a person represented on a limited scope retainer)).

[5]  This Code rule does not apply to situations in which a lawyer is providing summary advice, for example over a telephone hotline or as duty counsel, or to initial consultations that may result in the client retaining the lawyer.

[commentary added 09/2013; [4] and [5] amended 11/2024]

Commentary

[1]  A lawyer should disclose to the client all the circumstances of the lawyer’s relations to the parties and interest in or connection with the matter, if any that might influence whether the client selects or continues to retain the lawyer.

[2]  A lawyer’s duty to a client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.

[3]  Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation of this Code rule. In communicating with the client, the lawyer may disagree with the client’s perspective, or may have concerns about the client’s position on a matter, and may give advice that will not please the client. This may legitimately require firm and animated discussion with the client.

[[3] amended 11/2024]

Commentary

[1]  The lawyer should advise the client of the client’s language rights as soon as possible.

[2]  The choice of official language is that of the client not the lawyer. The lawyer should be aware of relevant statutory and Constitutional law relating to language rights including the Canadian Charter of Rights and Freedoms, s.19(1) and Part XVII of the Criminal Code regarding language rights in courts under federal jurisdiction and in criminal proceedings. The lawyer should also be aware that provincial or territorial legislation may provide additional language rights, including in relation to aboriginal languages.

[3]  When a lawyer considers whether to provide the required services in the official language chosen by the client, the lawyer should carefully consider whether it is possible to render those services in a competent manner as required by Code rule 3.1-2 (Competence) and related commentary.

[4]  Civil trials in British Columbia must be held in English: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42. Under section 530 of the Criminal Code, RSC 1985, c. C-46 an accused has the right to a criminal trial in either English or French.

[commentary added 12/2016; [3] and [4] amended 11/2024]

Commentary

[1]  A lawyer acting for an organization should keep in mind that the organization, as such, is the client and that a corporate client has a legal personality distinct from its shareholders, officers, directors and employees. While the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected. Further, given that an organization depends on persons to give instructions, the lawyer should be satisfied that the person giving instructions for the organization is acting within that person’s authority.

[2]  In addition to acting for the organization, a lawyer may also accept a joint retainer and act for a person associated with the organization. For example, a lawyer may advise an officer of an organization about liability insurance. In such cases the lawyer acting for an organization should be alert to the prospects of a conflict of interest and should comply with the Code rules about the avoidance of a conflict of interest (section 3.4).

[[2] amended 11/2024]

Commentary

[1]  A lawyer should consider the use of alternative dispute resolution (ADR) when appropriate, inform the client of ADR options and, if so instructed, take steps to pursue those options.

Commentary

[1]  It is an abuse of the court or regulatory authority’s process to threaten to make or advance a complaint in order to secure the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid monies, threats to take criminal or quasi-criminal action are not appropriate.

[2]  It is not improper, however, to notify the appropriate authority of criminal or quasi-criminal activities while also taking steps through the civil system.

Commentary

[1]  “Regulatory authority” includes professional and other regulatory bodies.

[2]  A lawyer for an accused or potential accused must never influence a complainant or potential complainant not to communicate or cooperate with the Crown. However, this Code rule does not prevent a lawyer for an accused or potential accused from communicating with a complainant or potential complainant to obtain factual information, arrange for restitution or an apology from an accused, or defend or settle any civil matters between the accused and the complainant. When a proposed resolution involves valuable consideration being exchanged in return for influencing the Crown or regulatory authority not to proceed with a charge or to seek a reduced sentence or penalty, the lawyer for the accused must obtain the consent of the Crown or regulatory authority prior to discussing such proposal with the complainant or potential complainant. Similarly, lawyers advising a complainant or potential complainant with respect to any such negotiations can do so only with the consent of the Crown or regulatory authority.

[3]  A lawyer cannot provide an assurance that the settlement of a related civil matter will result in the withdrawal of criminal or quasi-criminal charges, absent the consent of the Crown or regulatory authority.

[4]  When the complainant or potential complainant is unrepresented, the lawyer should have regard to the Code rules respecting unrepresented persons and make it clear that the lawyer is acting exclusively in the interests of the accused. If the complainant or potential complainant is vulnerable, the lawyer should take care not to take unfair or improper advantage of the circumstances. When communicating with an unrepresented complainant or potential complainant, it is prudent to have a witness present.

[[2] and [4] amended 11/2024]

Commentary

[1]  A lawyer should be on guard against becoming the tool or dupe of an unscrupulous client, or of others, whether or not associated with the unscrupulous client.

[2]  A lawyer should be alert to and avoid unwittingly becoming involved with a client engaged in criminal activities such as mortgage fraud or money laundering. Vigilance is required because the means for these, and other criminal activities, may be transactions for which lawyers commonly provide services such as: establishing, purchasing or selling business entities; arranging financing for the purchase or sale or operation of business entities; arranging financing for the purchase or sale of business assets; and purchasing and selling real estate.

[3]  If lawyers have suspicions or doubts about whether they might be assisting a client in any dishonesty, crime or fraud, before accepting a retainer, or during the retainer, the lawyers should make reasonable inquiries to obtain information about the client and about the subject matter and objectives of the retainer. These should include making reasonable attempts to verify the legal or beneficial ownership of property and business entities and who has the control of business entities, and to clarify the nature and purpose of a complex or unusual transaction where the nature and purpose are not clear.

[3.1]  The lawyer should also make inquiries of a client who:

(a)     may be seeking, contrary to the prohibition in Rule 3-58.1(1) of the Law Society Rules, the use of the lawyer’s trust account without requiring any substantial legal services from the lawyer in connection with the trust matter, or

(b)     promises unrealistic returns on their investment to third parties who have placed money in trust with the lawyer or have been invited to do so.

[3.2]  The lawyer should make a record of the results of these inquiries.

[4]  A bona fide test case is not necessarily precluded by this Code rule and, so long as no injury to a person or violence is involved, a lawyer may properly advise and represent a client who, in good faith and on reasonable grounds, desires to challenge or test a law and the test can most effectively be made by means of a technical breach giving rise to a test case. In all situations, the lawyer should ensure that the client appreciates the consequences of bringing a test case.

[[3.1] amended 01/2021; [3] amended 10/2021; [4] amended 11/2024]

Commentary

[1]  The past, present, or proposed misconduct of an organization may have harmful and serious consequences, not only for the organization and its constituency, but also for the public who rely on organizations to provide a variety of goods and services. In particular, the misconduct of publicly traded commercial and financial corporations may have serious consequences for the public at large. This Code rule addresses some of the professional responsibilities of a lawyer acting for an organization, including a corporation, upon learning that the organization has acted, is acting, or proposes to act in a way that is dishonest, criminal or fraudulent. In addition to these Code rules, the lawyer may need to consider, for example, the Code rules and commentary about confidentiality (section 3.3).

[2]  This Code rule speaks of conduct that is dishonest, criminal or fraudulent.

[3]  Such conduct includes acts of omission. Indeed, often it is the omissions of an organization, such as failing to make required disclosure or to correct inaccurate disclosures that constitute the wrongful conduct to which these Code rules relate. Conduct likely to result in substantial harm to the organization, as opposed to genuinely trivial misconduct by an organization, invokes these Code rules.

[4]  In considering a lawyer's responsibilities under this section, a lawyer should consider whether it is feasible and appropriate to give any advice in writing.

[5]  A lawyer acting for an organization who learns that the organization has acted, is acting, or intends to act in a wrongful manner, may advise the chief executive officer and must advise the chief legal officer of the misconduct. If the wrongful conduct is not abandoned or stopped, the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately. If the organization, despite the lawyer’s advice, continues with the wrongful conduct, the lawyer must withdraw from acting in the particular matter in accordance with Code rule 3.7-1 (Withdrawal from representation). In some but not all cases, withdrawal means resigning from the lawyer's position or relationship with the organization and not simply withdrawing from acting in the particular matter.

[6]  This Code rule recognizes that lawyers as the legal advisers to organizations are in a central position to encourage organizations to comply with the law and to advise that it is in the organizations’ and the public’s interest that organizations do not violate the law. Lawyers acting for organizations are often in a position to advise the executive officers of the organization, not only about the technicalities of the law, but also about the public relations and public policy concerns that motivated the government or regulator to enact the law. Moreover, lawyers for organizations, particularly in-house counsel, may guide organizations to act in ways that are legal, ethical, reputable and consistent with the organizations’ responsibilities to its constituents and to the public.

[[1], [4] and [5] amended 10/2021; [1] to [3], [5] and [6] amended 11/2024]

Commentary

[1]  A lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about the client's legal affairs and to provide the lawyer with instructions. A client’s ability to make decisions depends on such factors as age, intelligence, experience and mental and physical health and on the advice, guidance and support of others. A client’s ability to make decisions may change, for better or worse, over time. A client may be mentally capable of making some decisions but not others. The key is whether the client has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision. Accordingly, when a client is, or comes to be, under a disability that impairs the client's ability to make decisions, the lawyer will have to assess whether the impairment is minor or whether it prevents the client from providing instructions or entering into binding legal relationships.

[2]  A lawyer who believes a person to be incapable of giving instructions should decline to act. However, if a lawyer reasonably believes that the person has no other agent or representative and a failure to act could result in imminent and irreparable harm, the lawyer may take action on behalf of the person lacking capacity only to the extent necessary to protect the person until a legal representative can be appointed. A lawyer undertaking to so act has the same duties under this Code rule to the person lacking capacity as the lawyer would with any client.

[3]  If a client’s incapacity is discovered or arises after the solicitor-client relationship is established, the lawyer may need to take steps to have a lawfully authorized representative, such as a litigation guardian, appointed or to obtain the assistance of the Public Guardian and Trustee to protect the interests of the client. Whether that should be done depends on all relevant circumstances, including the importance and urgency of any matter requiring instruction. In any event, the lawyer has an ethical obligation to ensure that the client’s interests are not abandoned. Until the appointment of a legal representative occurs, the lawyer should act to preserve and protect the client’s interests.

[4]  In some circumstances when there is a legal representative, the lawyer may disagree with the legal representative’s assessment of what is in the best interests of the client under a disability. So long as there is no lack of good faith or authority, the judgment of the legal representative should prevail. If a lawyer becomes aware of conduct or intended conduct of the legal representative that is clearly in bad faith or outside that person’s authority, and contrary to the best interests of the client with diminished capacity, the lawyer may act to protect those interests. This may require reporting the misconduct to a person or institution such as a family member or the Public Guardian and Trustee.

[5]  When a lawyer takes protective action on behalf of a person or client lacking in capacity, the authority to disclose necessary confidential information may be implied in some circumstances: See commentary under Code rule 3.3-1 (Confidential information) for a discussion of the relevant factors. If the court or another lawyer becomes involved, the lawyer should inform them of the nature of the lawyer’s relationship with the person lacking capacity.

[[1] amended 10/2021; [2] to [5] amended 11/2024]

Commentary

[1]  A lawyer cannot render effective professional service to a client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

[2]  This Code rule must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

[3]  A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

[4]  A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. (See section 3.4 (Conflicts).)

[5]  Generally, unless the nature of the matter requires such disclosure, a lawyer should not disclose having been:

(a)     retained by a person about a particular matter; or

(b)     consulted by a person about a particular matter, whether or not the lawyer-client relationship has been established between them.

[6]  A lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.

[7]  Sole practitioners who practise in association with other lawyers in cost-sharing, space-sharing or other arrangements should be mindful of the risk of advertent or inadvertent disclosure of confidential information, even if the lawyers institute systems and procedures that are designed to insulate their respective practices. The issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another lawyer in the association. Apart from conflict of interest issues such a situation may raise, the risk of such disclosure may depend on the extent to which the lawyers’ practices are integrated, physically and administratively, in the association.

[8]  A lawyer should avoid indiscreet conversations and other communications, even with the lawyer’s spouse or family, about a client’s affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client’s business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shoptalk among lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened. Although this Code rule may not apply to facts that are public knowledge, a lawyer should guard against participating in or commenting on speculation concerning clients’ affairs or business.

[9]  In some situations, the authority of the client to disclose may be inferred. For example, in court proceedings some disclosure may be necessary in a pleading or other court document. Also, it is implied that a lawyer may, unless the client directs otherwise, disclose the client’s affairs to colleagues in the law firm, including administrative staff, and, to the extent necessary, to others whose services are used by the lawyer. But this implied authority to disclose places the lawyer under a duty to impress upon associates, employees, students and other lawyers engaged under contract with the lawyer or with the law firm of the lawyer the importance of non-disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.

[10]  The client’s authority for the lawyer to disclose confidential information to the extent necessary to protect the client’s interest may also be inferred in some situations where the lawyer is taking action on behalf of the person lacking capacity to protect the person until a legal representative can be appointed. In determining whether a lawyer may disclose such information, the lawyer should consider all circumstances, including the reasonableness of the lawyer’s belief the person lacks capacity, the potential harm that may come to the client if no action is taken, and any instructions the client may have given the lawyer when capable of giving instructions about the authority to disclose information. Similar considerations apply to confidential information given to the lawyer by a person who lacks the capacity to become a client but nevertheless requires protection.

[11]  A lawyer may have an obligation to disclose information under Code rules 5.5-2, 5.5-3 (Disclosure of information) and 5.6-3 (Security of court facilities). If client information is involved in those situations, the lawyer should be guided by the provisions of this Code rule.

[[2], [4], [8], [9] and [11] amended 11/2024]

Commentary

[1]  The fiduciary relationship between a lawyer and a client forbids the lawyer or a third person from benefiting from the lawyer’s use of a client’s confidential information. If a lawyer engages in literary works, such as a memoir or autobiography, the lawyer is required to obtain the client’s or former client’s consent before disclosing confidential information.

Commentary

[1]  A lawyer who is required by law or by order of a court to disclose a client’s affairs must not disclose more information than is necessary.

Commentary

[1]  Confidentiality and loyalty are fundamental to the relationship between a lawyer and a client because legal advice cannot be given and justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers. However, in some very exceptional situations identified in this Code rule, disclosure without the client’s permission might be warranted because the lawyer is satisfied that truly serious harm of the types identified is imminent and cannot otherwise be prevented. These situations will be extremely rare.

[2]  The Supreme Court of Canada has considered the meaning of the words “serious bodily harm” in certain contexts, which may inform a lawyer in assessing whether disclosure of confidential information is warranted. In Smith v. Jones, [1999] 1 SCR 455 at paragraph 83, the Court also observed that serious psychological harm may constitute serious bodily harm if it substantially interferes with the health or well-being of the individual.

[3]  In assessing whether disclosure of confidential information is justified, a lawyer should consider a number of factors, including:

(a)     the seriousness of the potential injury to others if the prospective harm occurs;

(b)     the likelihood that it will occur and its imminence;

(c)     the apparent absence of any other feasible way to prevent the potential injury; and

(d)     the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action.

[4]  How and when disclosure should be made under this Code rule will depend upon the circumstances. A lawyer who believes that disclosure may be warranted should contact the Society for ethical advice. When practicable and permitted, a judicial order may be sought for disclosure.

[5]  If confidential information is disclosed under this Code rule, the lawyer should prepare a written note as soon as possible, which should include:

(a)     the date and time of the communication in which the disclosure is made;

(b)     the grounds in support of the lawyer’s decision to communicate the information, including the harm the lawyer intended to prevent, the identity of the person who prompted the lawyer to communicate the information as well as the identity of the person or group of persons exposed to the harm; and

(c)     the content of the communication, the method of communication used and the identity of the person to whom the communication was made. 

[[5] amended 05/2019; [1], [4] and [5] amended 11/2024]

Commentary

[1]  As a matter related to clients’ interests in maintaining a relationship with their lawyer of choice and protecting client confidences, lawyers in different law firms may need to disclose limited information to each other to detect and resolve a conflict of interest, such as when a lawyer is considering an association with another law firm, two or more law firms are considering a merger, or a lawyer is considering the purchase of a law practice. 

[2]  In these situations (see Code rules 3.4-17 to 3.4-23 (Conflict from transfer between law firms)), this Code rule permits lawyers and law firms to disclose limited information. This type of disclosure would only be made once substantive discussions regarding the new relationship have occurred. 

[3]  This exchange of information between the law firms needs to be done in a manner consistent with the transferring lawyer’s and new law firm’s obligations to protect client confidentiality and privileged information and avoid any prejudice to the client. It ordinarily would include no more than the names of the persons and entities involved in a matter. Depending on the circumstances, it may include a brief summary of the general issues involved, and information about whether the representation has come to an end. 

[4]  The disclosure should be made to as few lawyers at the new law firm as possible, ideally to one lawyer of the new law firm, such as a designated conflict of interest lawyer. The information should always be disclosed only to the extent reasonably necessary to detect and resolve a conflict of interest that might arise from the possible new relationship. 

[5]  As the disclosure is made on the basis that it is solely for the use of checking for a conflict where lawyers are transferring between law firms and for establishing screens, the disclosure should be coupled with an undertaking by the new law firm to the former law firm that it will:

(a) limit access to the disclosed information;

(b) not use the information for any purpose other than detecting and resolving a conflict; and

(c) return, destroy, or store in a secure and confidential manner the information provided once appropriate confidentiality screens are established.

[6]  The client’s consent to disclosure of such information may be specifically addressed in a retainer agreement between the lawyer and client. In some circumstances, however, because of the nature of the retainer, the transferring lawyer and the new law firm may be required to obtain the consent of clients to such disclosure or the disclosure of any further information about the clients. This is especially the case where disclosure would compromise solicitor-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). 

[commentary added 11/2016; [1] to [5] amended 11/2024]

Commentary

[0.1]  In a real property transaction, a lawyer may act for more than one party with different interests only in the circumstances permitted by Appendix C.

[1]  Lawyers have an ethical duty to avoid a conflict of interest. Some cases involving conflicts of interest will fall within the scope of the bright line rule as articulated by the Supreme Court of Canada. The bright line rule prohibits a lawyer or law firm from representing one client whose legal interests are directly adverse to the immediate legal interests of another client even if the matters are unrelated unless the clients consent. However, the bright line rule cannot be used to support tactical abuses and will not apply in the exceptional cases where it is unreasonable for the client to expect that the lawyer or law firm will not act against it in unrelated matters. See also Code rule 3.4-2 (Consent) and commentary [6].

[2]  In cases where the bright line rule is inapplicable, the lawyer or law firm will still be prevented from acting if representation of the client would create a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.

[3]  This Code rule applies to a lawyer's representation of a client in all circumstances in which the lawyer acts for, provides advice to or exercises judgment on behalf of a client. Effective representation may be threatened where a lawyer is tempted to prefer other interests over those of their own client: the lawyer's own interests, those of a current client, a former client, or a third party.

Representation

[4]  Representation means acting for a client and includes the lawyer’s advice to and judgment on behalf of the client.

The fiduciary relationship, the duty of loyalty and conflicting interests

[5]  The rule governing conflict of interest is founded in the duty of loyalty which is grounded in the law governing fiduciaries. The lawyer-client relationship is a fiduciary relationship and as such, the lawyer has a duty of loyalty to the client. To maintain public confidence in the integrity of the legal profession and the administration of justice, in which lawyers play a key role, it is essential that lawyers respect the duty of loyalty. Arising from the duty of loyalty are other duties, such as a duty to commit to the client’s cause, the duty of confidentiality, the duty of candour and the duty not to act in a conflict of interest. 

[6]  A client must be assured of the lawyer’s undivided loyalty, free from any material impairment of the lawyer and client relationship. The relationship may be irreparably damaged where the lawyer’s representation of one client is directly adverse to another client’s immediate legal interests. One client may legitimately fear that the lawyer will not pursue the representation out of deference to the other client.

Other duties arising from the duty of loyalty

[7]  The lawyer’s duty of confidentiality is owed to both current and former clients, with the related duty not to attack the legal work done during a retainer or to undermine the former client’s position on a matter that was central to the retainer.

[8]  The lawyer’s duty of commitment to the client’s cause prevents the lawyer from summarily and unexpectedly dropping a client to circumvent conflict of interest Code rules. The client may legitimately feel betrayed if the lawyer ceases to act for the client to avoid a conflict of interest.

[9]  The duty of candour requires a lawyer or law firm to advise an existing client of all matters relevant to the retainer.

Identifying a conflict

[10]  A lawyer should examine whether a conflict of interest exists not only from the outset but throughout the duration of a retainer because new circumstances or information may establish or reveal a conflict of interest. Factors for the lawyer’s consideration in determining whether a conflict of interest exists include:

(a)  the immediacy of the legal interests;

(b)  whether the legal interests are directly adverse;

(c)  whether the issue is substantive or procedural;

(d)  the temporal relationship between the matters;

(e)  the significance of the issue to the immediate and long-term interests of the clients involved; and

(f)  the clients' reasonable expectations in retaining the lawyer for the particular matter or representation.

Examples of areas where a conflict of interest may occur

[11]  A conflict of interest can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that may give rise to a conflict of interest. The examples are not exhaustive.

(a)  A lawyer acts as an advocate in one matter against a person when the lawyer represents that person on some other matter.

(b)  A lawyer provides legal advice to a small business on a series of commercial transactions and at the same time provides legal advice to an employee of the business on an employment matter, thereby acting for clients whose legal interests are directly adverse.

(c)  A lawyer, an associate, a law partner or a family member has a personal financial interest in a client’s affairs or in a matter in which the lawyer is requested to act for a client, such as a partnership interest in some joint business venture with a client.

(i)  A lawyer owning a small number of shares of a publicly traded corporation would not necessarily have a conflict of interest in acting for the corporation because the holding may have no adverse influence on the lawyer’s judgment or loyalty to the client.

(d)  A lawyer has a sexual or close personal relationship with a client.

(i)  Such a relationship may conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client. The relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship and may jeopardize the client’s right to have all information concerning the client's affairs held in strict confidence. The relationship may in some circumstances permit exploitation of the client by the lawyer. If the lawyer is at a law firm and concludes that a conflict exists, the conflict is not imputed to the lawyer’s law firm, but could be cured if another lawyer in the law firm who is not involved in such a relationship with the client handled the client’s work.

(e)  A lawyer or a lawyer's law firm acts for a public or private corporation and the lawyer serves as a director of the corporation.

(i)  These two roles may result in a conflict of interest or other problems because they may

1.  affect the lawyer’s independent judgment and fiduciary obligations in either or both roles,

2.  obscure legal advice from business and practical advice,

3.  jeopardize the protection of lawyer and client privilege, and

4.  disqualify the lawyer or the law firm from acting for the organization.

(f)  Sole practitioners who practise with other lawyers in cost-sharing or other arrangements represent clients on opposite sides of a dispute. See Code rules 3.4-42 and 3.4-43 (Space-sharing arrangements).

(i)  The fact or the appearance of such a conflict may depend on the extent to which the lawyers’ practices are integrated, physically and administratively, in the association.

The role of the court and law societies

[12]  These Code rules set out ethical standards to which all members of the profession must adhere. The courts have a separate supervisory role over court proceedings. In that role, the courts apply fiduciary principles developed by the courts to govern lawyers’ relationships with their clients, to ensure the proper administration of justice. A breach of the Code section on conflict of interest may lead to sanction by a law society even where a court dealing with the case may decline to order disqualification as a remedy.

[[6] and [8] amended 10/2021; [1] to [3] and [5] to [8] amended, [9] to [12] added 09/2022; [1], [3], [5], [8] and [10] to [12] amended 11/2024]

Commentary

Disclosure and consent

[1]  Disclosure is an essential requirement to obtaining a client’s consent. Where it is not possible to provide the client with adequate disclosure because of the confidentiality of the information of another client, the lawyer must decline to act.

[2]  The lawyer should inform the client of the relevant circumstances and the reasonably foreseeable ways that the conflict of interest could adversely affect the client’s interests. This would include the lawyer’s relations to the parties and any interest in or connection with the matter.

[2.1]  While this Code rule does not require that a lawyer advise a client to obtain independent legal advice about the conflict of interest, in some cases the lawyer should recommend such advice. This is to ensure that the client’s consent is informed, genuine and uncoerced, especially if the client is vulnerable or not sophisticated.

[3]  Following the required disclosure, the client can decide whether to give consent. As important as it is to the client that the lawyer’s judgment and freedom of action on the client’s behalf not be subject to other interests, duties or obligations, in practice this factor may not always be decisive. Instead, it may be only one of several factors that the client will weigh when deciding whether or not to give the consent referred to in this Code rule. Other factors might include, for example, the availability of another lawyer of comparable expertise and experience, the stage that the matter or proceeding has reached, the extra cost, delay and inconvenience involved in engaging another lawyer, and the latter’s unfamiliarity with the client and the client’s affairs.

Consent in advance 

[4]  A lawyer may be able to request that a client consent in advance to a conflict of interest that might arise in the future. As the effectiveness of such consent is generally determined by the extent to which the client reasonably understands the material risks that the consent entails, the more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. A general, open-ended consent will ordinarily be ineffective because it is not reasonably likely that the client will have understood the material risks involved. If the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by another lawyer in giving consent and the consent is limited to a future conflict unrelated to the subject of the representation.

[5]  While not a pre-requisite to advance consent, in some circumstances it may be advisable to recommend that the client obtain independent legal advice before deciding whether to provide consent. Advance consent must be recorded, for example in a retainer letter.

Implied consent

[6]  In limited circumstances consent may be implied, rather than expressly granted. In some cases it may be unreasonable for a client to claim that it expected that the loyalty of the lawyer or law firm would be undivided and that the lawyer or law firm would refrain from acting against the client in unrelated matters. In considering whether the client’s expectation is reasonable, the nature of the relationship between the lawyer and client, the terms of the retainer and the matters involved must be considered. Governments, chartered banks and entities that might be considered sophisticated consumers of legal services may accept that lawyers may act against them in unrelated matters where there is no danger of misuse of confidential information. The more sophisticated the client is as a consumer of legal services, the more likely it will be that an inference of consent can be drawn. The mere nature of the client is not, however, a sufficient basis upon which to assume implied consent; the matters must be unrelated, the lawyer must not possess confidential information from one client that could affect the other client, and there must be a reasonable basis upon which to conclude that the client has commonly accepted that lawyers may act against it in such circumstances.

Lawyer belief in reasonableness of representation

[7]  The requirement that the lawyer reasonably believes that the lawyer is able to represent each client without having a material adverse effect on the representation of, or loyalty to, the other client precludes a lawyer from acting for parties to a transaction who have different interests, except where joint representation is permitted under this Code.

[[7] amended 10/2021; [2.1] added, [6] amended 09/2022; [2.1], [3] and [4] amended 11/2024]

Commentary

[1]  A lawyer representing a client who is a party in a dispute with another party or parties must competently and diligently develop and argue the position of the client. In a dispute, the parties’ immediate legal interests are clearly adverse. If the lawyer were permitted to act for opposing parties in such circumstances even with consent, the lawyer’s advice, judgment and loyalty to one client would be materially and adversely affected by the same duties to the other client or clients. In short, the lawyer would find it impossible to act without offending the Code rules in this section.

[amended 11/2024]

Commentary

[1]  This Code rule provides guidance on concurrent representation, which is permitted in limited circumstances. Concurrent representation is not contrary to the Code rule prohibiting representation where there is a conflict of interest provided that the clients are fully informed of the risks and understand that if a dispute arises among the clients that cannot be resolved the lawyers may have to withdraw, resulting in potential additional costs.

[2]  An example is a law firm acting for a number of sophisticated clients in a matter such as competing bids in a corporate acquisition in which, although the clients’ interests are divergent and may conflict, the clients are not in a dispute. Provided that each client is represented by a different lawyer in the law firm and there is no real risk that the law firm will not be able to properly represent the legal interests of each client, the law firm may represent both even though the subject matter of the retainers is the same. Whether or not a risk of impairment of representation exists is a question of fact.

[3]  The basis for the advice described in this Code rule, from both the lawyers involved in the concurrent representation and those giving the required independent legal advice, is whether concurrent representation is in the best interests of the clients. Even where all clients consent, the lawyers should not accept a concurrent retainer if the matter is one in which one of the clients is less sophisticated or more vulnerable than the other.

[4]  In cases of concurrent representation lawyers should employ, as applicable, the reasonable screening measures to ensure non-disclosure of confidential information within the firm set out in Code rule 3.4-20 (Law firm disqualification), commentary [3].

[[4] amended 03/2021; [1] to [4] amended 11/2024]

Commentary

[1]  Although this Code rule does not require that a lawyer advise clients to obtain independent legal advice before the lawyer may accept a joint retainer, in some cases, the lawyer should recommend such advice to ensure that the clients’ consent to the joint retainer is informed, genuine and uncoerced. This is especially so when one of the clients is less sophisticated or more vulnerable than the other. 

[2]  A lawyer who receives instructions from spouses or partners to prepare one or more wills for them based on their shared understanding of what is to be in each will should treat the matter as a joint retainer and comply with this Code rule. Further, at the outset of this joint retainer, the lawyer should advise the spouses or partners that, if subsequently only one of them were to communicate new instructions, such as instructions to change or revoke a will:

(a)     the subsequent communication would be treated as a request for a new retainer and not as part of the joint retainer;

(b)     in accordance with Code rule 3.3-1 (Confidential information), the lawyer would be obliged to hold the subsequent communication in strict confidence and not disclose it to the other spouse or partner; and

(c)     the lawyer would have a duty to decline the new retainer, unless:

(i)         the spouses or partners had annulled their marriage, divorced, permanently ended their conjugal relationship or permanently ended their close personal relationship, as the case may be;

(ii)        the other spouse or partner had died; or

(iii)       the other spouse or partner was informed of the subsequent communication and agreed to the lawyer acting on the new instructions.

[3]  After advising the spouses or partners in the manner described above, the lawyer should obtain their consent to act in accordance with Code rule 3.4-7.

[[1] to [3] amended 11/2024]

Commentary

[1]  Consent in writing, or a record of the consent in a separate letter to each client is required. Even if all the parties concerned consent, a lawyer should avoid acting for more than one client when it is likely that an issue contentious between them will arise or their interests, rights or obligations will diverge as the matter progresses.

Commentary

[1]  This Code rule does not prevent a lawyer from arbitrating or settling, or attempting to arbitrate or settle, a dispute between two or more clients or former clients who are not under any legal disability and who wish to submit the dispute to the lawyer.

[2]  If, after the clients have consented to a joint retainer, an issue contentious between them or some of them arises, the lawyer is not necessarily precluded from advising them on non-contentious matters.

[[1] amended 11/2024]

Commentary

[1]  This Code rule does not relieve the lawyer of the obligation, when the contentious issue arises, to obtain the consent of the clients if there is or is likely to be a conflict of interest, or if the representation on the contentious issue requires the lawyer to act against one of the clients.

[2]  When entering into a joint retainer, the lawyer should stipulate that, if a contentious issue develops, the lawyer will be compelled to cease acting altogether unless, at the time the contentious issue develops, all parties consent to the lawyer’s continuing to represent one of them. Consent given before the fact may be ineffective since the party granting the consent will not at that time be in possession of all relevant information.

[[1] amended 11/2024]

Commentary

[1]  This Code rule prohibits a lawyer from attacking legal work done during the retainer, or from undermining the client’s position on a matter that was central to the retainer. It is not improper, however, for a lawyer to act against a former client in a matter wholly unrelated to any work the lawyer has previously done for that person if previously obtained confidential information is irrelevant to that matter.

[amended 11/2024]

Commentary

[1]  The guidelines following commentary [3] to Code rule 3.4-20 (Law firm disqualification) regarding lawyer transfers between law firms provide valuable guidance for the protection of confidential information in the rare cases in which, having regard to all of the relevant circumstances, it is appropriate for another lawyer in the law firm to act against the former client.

[amended 11/2016; 11/2024]

Commentary

[1]  Short-term summary legal service and duty counsel programs are usually offered in circumstances in which it may be difficult to systematically screen for a conflict of interest in a timely way, despite the best efforts and existing practices and procedures of the not-for-profit legal services provider and the lawyers and law firms who provide these services. Performing a full conflict screening in circumstances in which the short-term summary services described in these Code rules are being offered can be very challenging given the timelines, volume and logistics of the setting in which the services are provided.

[2]  The limited nature of short-term summary legal services significantly reduces the risk of a conflict of interest with other matters being handled by the lawyer’s law firm. Accordingly, the lawyer is disqualified from acting for a client receiving short-term summary legal services only if the lawyer has actual knowledge of a conflict of interest between the client receiving short-term summary legal services and an existing client of the lawyer or an existing client of the pro bono or not-for-profit legal services provider or between the lawyer and the client receiving short-term summary legal services.

[3]  Confidential information obtained by a lawyer providing the services described in Code rules 3.4-11.1 to 3.4-11.4 will not be imputed to the lawyers in the lawyer’s firm or to non-lawyer partners or associates in a multi-disciplinary partnership. As such, these individuals may continue to act for another client adverse in interest to the client who is obtaining or has obtained short-term summary legal services, and may act in future for another client adverse in interest to the client who is obtaining or has obtained short-term summary legal services.

[4]  In the provision of short-term summary legal services, the lawyer’s knowledge about a possible conflict of interest is based on the lawyer’s reasonable recollection and information provided by the client in the ordinary course of consulting with the pro bono or not-for-profit legal services provider to receive its services.

[[1] to [4] added 06/2016; [2] amended 09/2016; [1] to [4] amended 11/2024]

Commentary

[2]   Code rules 3.4-17 to 3.4-23 apply to lawyers sharing space. Treating space-sharing lawyers as a law firm recognizes:

(a)     the concern that opposing clients may have about the appearance of proximity of lawyers sharing space, and

(b)     the risk that lawyers sharing space may be exposed inadvertently to confidential information of an opposing client.

[[5] updated 07/2015; [2] amended, [3] to [5] rescinded 11/2016; [2] amended 11/2024]

Commentary

[1] The purpose of this Code rule is to deal with actual knowledge. Imputed knowledge does not give rise to disqualification. As stated by the Supreme Court of Canada in MacDonald Estate v. Martin, [1990] 3 SCR 1235, with respect to the other lawyers in the law firm of a lawyer who has relevant confidential information, the concept of imputed knowledge is unrealistic in the era of the mega-law firm. Notwithstanding the foregoing, the inference to be drawn is that lawyers working together in the same law firm will share confidences on the matters on which they are working, such that actual knowledge may be presumed. That presumption can be rebutted by clear and convincing evidence that shows that all reasonable measures, as discussed in Code rule 3.4-20 (Law firm disqualification), have been taken to ensure that no disclosure will occur by the transferring lawyer to the member or members of the law firm who are engaged against a former client.

[2] The duties imposed by this Code rule concerning confidential information should be distinguished from the general ethical duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, which duty applies without regard to the nature or source of the information or to the fact that others may share the knowledge.

[3] Law firms with multiple offices — This Code rule treats as one “law firm” such entities as the various legal services units of a government, a corporation with separate regional legal departments and an interjurisdictional law firm.

[[1] to [3] added 11/2016; [1] amended 10/2021; [1] to [3] amended 11/2024]

Commentary

[1]  Government employees and in-house counsel — The definition of “law firm” includes one or more lawyers practising in a government, a Crown corporation, any other public body or a corporation. Thus, this Code rule applies to lawyers transferring to or from government service and into or out of an in-house counsel position, but does not extend to purely internal transfers in which, after transfer, the employer remains the same.

[[1] added 11/2016; amended 11/2024]

Commentary

[0.1]  There are two circumstances in which the new law firm should consider the implementation of reasonable measures to ensure that there will be no disclosure of the former client’s confidential information to any member of the new law firm:

(a)  if the transferring lawyer actually possesses confidential information respecting the former client that may prejudice the former client if disclosed to a member of the new law firm, and

(b)  if the new law firm is not sure whether the transferring lawyer possesses such confidential information, but it wants to strengthen its position if it is later determined that the transferring lawyer did in fact possess such confidential information.

[1]  It is not possible to offer a set of “reasonable measures” that will be appropriate or adequate in every case. Instead, the new law firm that seeks to implement reasonable measures must exercise professional judgment in determining what steps must be taken “to ensure that no disclosure will occur to any member of the new law firm of the former client’s confidential information.” Such measures may include timely and properly constructed confidentiality screens.

[2]  For example, the various legal services units of a government, a corporation with separate regional legal departments, an interjurisdictional law firm, or a legal aid program may be able to demonstrate that, because of its institutional structure, reporting relationships, function, nature of work, and geography, relatively fewer “measures” are necessary to ensure the non-disclosure of client confidences. If it can be shown that, because of factors such as the above, lawyers in separate units, offices or departments do not “work together” with other lawyers in other units, offices or departments, this will be taken into account in the determination of what screening measures are “reasonable.”

[3]  The guidelines that follow are intended as a checklist of relevant factors to be considered. Adoption of only some of the guidelines may be adequate in some cases, while adoption of them all may not be sufficient in others.

Guidelines: How to screen / measures to be taken  

1. The screened lawyer should have no involvement in the new law firm’s representation of its client in the matter. 

2. The screened lawyer should not discuss the current matter or any information relating to the representation of the former client (the two may be identical) with anyone else in the new law firm. 

3. No member of the new law firm should discuss the current matter or the previous representation with the screened lawyer. 

4. The law firm should take steps to preclude the screened lawyer from having access to any part of the file. 

4.1 The measures taken by the new law firm to screen the transferring lawyer should be stated in a written policy explained to all lawyers and support staff within the law firm. 

5. The new law firm should document the measures taken to screen the transferring lawyer, the time when these measures were put in place (the sooner the better), and should advise all affected lawyers and support staff of the measures taken. 

6. These guidelines apply with necessary modifications to situations in which non-lawyer staff leave one law firm to work for another and a determination is made, before hiring the individual, on whether any conflict of interest will be created and whether the potential new hire actually possesses relevant confidential information.

How to determine if a conflict exists before hiring a potential transferee

[4] When a law firm (“new law firm”) considers hiring a lawyer, or an articled student (“transferring lawyer/articled student”) from another law firm (“former law firm”), the transferring lawyer and the new law firm need to determine, before the transfer, whether any conflict of interest will be created. A conflict can arise with respect to clients of the law firm that the transferring lawyer is leaving and with respect to clients of a law firm in which the transferring lawyer worked at some earlier time. 

[5] After completing the interview process and before hiring the transferring lawyer, the new law firm should determine whether any conflict of interest exists. In determining whether the transferring lawyer actually possesses relevant confidential information, both the transferring lawyer and the new law firm must be very careful, during any interview of a potential transferring lawyer, or other recruitment process, to ensure that they do not disclose client confidences. See Code rule 3.3-7 which provides that a lawyer may disclose confidential information to the extent the lawyer reasonably believes necessary to detect and resolve a conflict of interest where lawyers transfer between law firms. 

[6] A lawyer’s duty to the lawyer’s law firm may also govern a lawyer’s conduct when exploring an association with another law firm and is beyond the scope of these Code rules.

[7] Issues arising as a result of a transfer between law firms should be dealt with promptly. A lawyer’s failure to promptly raise any issues may prejudice clients and may be considered sharp practice.  

[[2] and [3] amended, [0.1], [1] and [4] to [7] added 11/2016; [0.1] and [3] to [6] amended 11/2024]

Commentary

[1]  This Code rule is intended to regulate lawyers and articled students who transfer between law firms. It also imposes a general duty on lawyers and law firms to exercise due diligence in the supervision of non-lawyer staff to ensure that they comply with the Code rules and with the duty not to disclose confidences of clients of the lawyer’s law firm and confidences of clients of other law firms in which the person has worked. 

[2]  Certain non-lawyer staff in a law firm routinely have full access to and work extensively on client files. As such, they may possess confidential information about the client. If these staff move from one law firm to another and the new law firm acts for a client opposed in interest to the client on whose files the staff worked, unless measures are taken to screen the staff, it is reasonable to conclude that confidential information may be shared. It is the responsibility of the lawyer and law firm to ensure that staff who may have confidential information that, if disclosed, may prejudice the interests of the client of the former law firm, have no involvement with and no access to information relating to the relevant client of the new law firm.

[commentary added 11/2016; amended 11/2024]

Commentary

[1]  Any relationship or interest that affects a lawyer’s professional judgment is to be avoided under this Code rule, including ones involving a relative, partner, employer, employee, business associate or friend of the lawyer.

[amended 11/2024]

Commentary

[1]  Generally speaking, a lawyer may act as legal advisor or as business associate, but not both. These principles are not intended to preclude lawyers from performing legal services on their own behalf. Lawyers should be aware, however, that acting in certain circumstances may cause them to lose coverage as a result of Exclusion 6 in the BC Lawyers Compulsory Professional Liability Indemnity Policy and similar provisions in other insurance policies.

[2]  Whether or not coverage under the Compulsory Policy is lost is determined separate and apart from the ethical obligations addressed in this chapter. Review the current policy for the exact wording of Exclusion 6 or contact the Lawyers Indemnity Fund regarding the application of the Exclusion to a particular set of circumstances.

[[1] and [2] amended 09/2021; [1] amended 11/2024]

Commentary

[0.1]  A client is entitled to obtain independent legal representation by retaining a lawyer who has no conflict of interest in the matter to act for the client in relation to the matter.

[1]  If a client elects to waive independent legal representation and to rely on independent legal advice only, the lawyer retained has a responsibility that should not be lightly assumed or perfunctorily discharged.

[2]  Either independent legal representation or independent legal advice may be provided by a lawyer employed by the client as in-house counsel.

[[0.1] amended 11/2024]

Commentary

[1]  This provision applies to any transaction with a client, including:

(a)     lending or borrowing money;

(b)     buying or selling property;

(c)     accepting a gift, including a testamentary gift;

(d)     giving or acquiring ownership, security or other pecuniary interest in a company or other entity;

(e)     recommending an investment; and

(f)      entering into a common business venture.

[2]  The relationship between lawyer and client is a fiduciary one, and no conflict between the lawyer’s own interest and the lawyer’s duty to the client can be permitted. The remuneration paid to a lawyer by a client for the legal work undertaken by the lawyer for the client does not give rise to a conflict of interest.

[[2] amended 11/2024]

Commentary

[1]  If the lawyer does not choose to disclose the conflicting interest or cannot do so without breaching confidence, the lawyer must decline the retainer.

[2]  A lawyer should not uncritically accept a client’s decision to have the lawyer act. It should be borne in mind that, if the lawyer accepts the retainer, the lawyer’s first duty will be to the client. If the lawyer has any misgivings about being able to place the client’s interests first, the retainer should be declined.

[3]  Generally, in disciplinary proceedings under this Code rule, the burden will rest upon the lawyer to show good faith, that adequate disclosure was made in the matter, and that the client’s consent was obtained.

[4]  If the investment is by borrowing from the client, the transaction may fall within the requirements of Code rule 3.4-32 (Certificate of independent legal advice).

[[3] amended 10/2021; [3] and [4] amended 11/2024]

Commentary

[1]  Whether a person is considered a client within this Code rule when lending money to a lawyer on that person’s own account or investing money in a security in which the lawyer has an interest is determined having regard to all circumstances. If the circumstances are such that the lender or investor might reasonably feel entitled to look to the lawyer for guidance and advice about the loan or investment, the lawyer is bound by the same fiduciary obligation that attaches to a lawyer in dealings with a client.

[amended 11/2024]

Commentary

[1]  Like other lawyers, those who share space must take all reasonable measures to ensure client confidentiality. Lawyers who do not wish to act for clients adverse in interest to clients of lawyers with whom they share space should establish an adequate conflict check system.

[2]  In order both to ensure confidentiality and to avoid a conflict of interest, a lawyer must have the consent of each client before disclosing any information about the client for the purpose of a conflict check. Consent may be implied in some cases but, if there is any doubt, the best course is to obtain express consent.

[amended 11/2024]

Commentary

[1]  The duties concerning safekeeping, preserving, and accounting for clients’ monies and other property are set out in the Law Society Rules.

[2]  These duties are closely related to those regarding confidential information. A lawyer is responsible for maintaining the safety and confidentiality of the files of the client in the possession of the lawyer and should take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information. A lawyer should keep the client’s papers and other property out of sight as well as out of reach of those not entitled to see them.

[3]  Subject to any rights of lien, the lawyer should promptly return a client’s property to the client on request or at the conclusion of the lawyer’s retainer.

[4]  If the lawyer withdraws from representing a client, the lawyer is required to comply with section 3.7 (Withdrawal from representation).

Commentary

[1]  What is a fair and reasonable fee depends on such factors as:

(a)  the time and effort required and spent;

(b)  the difficulty of the matter and the importance of the matter to the client;

(c)  whether special skill or service has been required and provided;

(d)  the results obtained;

(e)  fees authorized by statute or regulation;

(f)  special circumstances, such as the postponement of payment, uncertainty of reward, or urgency;

(g)  the likelihood, if made known to the client, that acceptance of the retainer will result in the lawyer’s inability to accept other employment;

(h)  any relevant agreement between the lawyer and the client;

(i)  the experience and ability of the lawyer;

(j)  any estimate or range of fees given by the lawyer; and

(k)  the client’s prior consent to the fee.

[2]  The fiduciary relationship between lawyer and client requires full disclosure in all financial dealings between them and prohibits the acceptance by the lawyer of any hidden fees. No fee, extra fees, reward, costs, commission, interest, rebate, agency or forwarding allowance, or other compensation related to professional employment may be taken by the lawyer from anyone other than the client without full disclosure to and the consent of the client or, where the lawyer’s fees are being paid by someone other than the client, such as a legal aid agency, a borrower, or a personal representative, without the consent of such agency or other person.

[3]  A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined.

[4]  A lawyer should be ready to explain the basis of the fees and disbursement charged to the client.  This is particularly important concerning fee charges or disbursements that the client might not reasonably be expected to anticipate. When something unusual or unforeseen occurs that may substantially affect the amount of a fee or disbursement, the lawyer should give to the client an immediate explanation. A lawyer should confirm with the client in writing the substance of all fee discussions that occur as a matter progresses, and a lawyer may revise an initial estimate of fees and disbursements.

Commentary

[1]  In determining the appropriate percentage or other basis of a contingency fee, a lawyer and client should consider a number of factors, including the likelihood of success, the nature and complexity of the claim, the expense and risk of pursuing it, the amount of the expected recovery and who is to receive an award of costs. The test is whether the fee, in all of the circumstances, is fair and reasonable.

[2]  Although a lawyer is generally permitted to terminate the professional relationship with a client and withdraw services if there is justifiable cause as set out in Code rule 3.7-1 (Withdrawal from representation), special circumstances apply when the retainer is pursuant to a contingency agreement. In such circumstances, the lawyer has impliedly undertaken the risk of not being paid in the event the suit is unsuccessful. Accordingly, a lawyer cannot withdraw from representation for reasons other than those set out in Code rule 3.7-7 (Obligatory withdrawal) unless the written contingency contract specifically states that the lawyer has a right to do so and sets out the circumstances under which this may occur.

[[1] amended 04/2013; [2] amended 11/2024]

Commentary

[1]  A lawyer’s duty of candour to a client requires the lawyer to disclose to the client at the outset, in a manner that is transparent and understandable to the client, the basis on which the client is to be billed for both professional time (lawyer, student and staff) and any other charges.

[2]  Party-and-party costs received by a lawyer are the property of the client and should therefore be accounted for to the client. While an agreement that the lawyer will be entitled to costs is not uncommon, it does not affect the lawyer’s obligation to disclose the costs to the client.

[[1] rescinded 04/2013; added 06/2015; amended 11/2024]

Commentary

[1]  This Code rule prohibits lawyers from entering into arrangements to compensate or reward non-lawyers for the referral of clients. It does not prevent a lawyer from engaging in promotional activities involving reasonable expenditures on promotional items or activities that might result in the referral of clients generally by a non-lawyer. Accordingly, this Code rule does not prohibit a lawyer from:

(a)  making an arrangement respecting the purchase and sale of a law practice when the consideration payable includes a percentage of revenues generated from the practice sold;

(b)  entering into a lease under which a landlord directly or indirectly shares in the fees or revenues generated by the law practice;

(c)  paying an employee for services, other than for referring clients, based on the revenue of the lawyer’s law firm or practice; or

(d)  occasionally entertaining potential referral sources by purchasing meals, providing tickets to, or attending at, sporting or other activities or sponsoring client functions.

[amended 11/2024]

Commentary

[2]  This Code rule also allows a lawyer to share fees or profits of an MDP with a non-lawyer for the purpose of paying out the ownership interest of the non-lawyer acquired by the non-lawyer’s active participation in the MDP’s delivery of services to clients or in the management of the MDP.

[3]  See also the definitions of “MDP” and “professional corporation” in Rule 1 and Rules 2-38 to 2-49 of the Law Society Rules.

[[3] updated 07/2015; [2] amended 11/2024]

Commentary

[1]  This Code rule is not intended to be an exhaustive statement of the considerations that apply to payment of a lawyer’s account from trust. The handling of trust money is generally governed by the Law Society Rules.

[2]  Refusing to reimburse any portion of advance fees for work that has not been carried out when the contract of professional services with the client has terminated is a breach of the obligation to act with integrity.

[[1] amended 11/2024]

Commentary

[1]  Although the client has the right to terminate the lawyer-client relationship at will, a lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. It is inappropriate for a lawyer to withdraw on capricious or arbitrary grounds.

[2]  An essential element of reasonable notice is notification to the client, unless the client cannot be located after reasonable efforts. No hard and fast rules can be laid down as to what constitutes reasonable notice before withdrawal and how quickly a lawyer may cease acting after notification will depend on all relevant circumstances. When the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril. As a general rule, the client should be given sufficient time to retain and instruct replacement counsel. Nor should withdrawal or an intention to withdraw be permitted to waste court time or prevent other counsel from reallocating time or resources scheduled for the matter in question. See Code rule 3.7-8 (Manner of withdrawal).

[3]  Every effort should be made to ensure that withdrawal occurs at an appropriate time in the proceedings in keeping with the lawyer’s obligations. The court, opposing parties and others directly affected should also be notified of the withdrawal.

[4]  When a lawyer leaves a law firm to practise alone or to join another law firm, the departing lawyer and the law firm have a duty to inform all clients for whom the departing lawyer is the responsible lawyer in a legal matter that the clients have a right to choose who will continue to represent them. The same duty may arise when a law firm is winding up or dividing into smaller units.

[5]  This duty does not arise if the lawyers affected by the changes, acting reasonably, conclude that the circumstances make it obvious that a client will continue as a client of a particular lawyer or law firm.

[6]  When this Chapter requires a notification to clients, each client must receive a letter as soon as practicable after the effective date of the changes is determined, informing the client of the right to choose a lawyer.

[7]  It is preferable that this letter be sent jointly by the law firm and any lawyers affected by the changes. However, in the absence of a joint announcement, the law firm or any lawyers affected by the changes may send letters in substantially the form set out in the precedents provided by the Society.

[8]  Lawyers whose clients are affected by changes in a law firm have a continuing obligation to protect client information and property, and must minimize any adverse effect on the interests of clients. This obligation generally includes an obligation to ensure that files transferred to a new lawyer or law firm are properly transitioned, including, when necessary, describing the status of the file and noting any unfulfilled undertakings and other outstanding commitments.

[9]  The right of a client to be informed of changes to a law firm and to choose a lawyer cannot be curtailed by any contractual or other arrangement.

[10]  With respect to communication other than that required by these Code rules, lawyers should be mindful of the common law restrictions upon uses of proprietary information, and interference with contractual and professional relations between the law firm and its clients. 

[[6], [7] and [9] amended 10/2021; [7] updated 01/2024; [2], [4], [7] and [10] amended 11/2024]

Commentary

[1]  A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if the lawyer is deceived by the client, the client refuses to accept and act upon the lawyer’s advice on a significant point, the client is persistently unreasonable or uncooperative in a material respect, or the lawyer is facing difficulty in obtaining adequate instructions from the client. However, the lawyer should not use the threat of withdrawal as a device to force a hasty decision by the client on a difficult question.

[amended 12/2018]

Commentary

[1]  When the lawyer withdraws because the client has not paid the lawyer’s fee, the lawyer should ensure that there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for a hearing or trial.

[2]  In criminal matters, if withdrawal is a result of non-payment of the lawyer’s fees, the court may exercise its discretion to refuse counsel’s withdrawal. The court’s order refusing counsel’s withdrawal may be enforced by the court’s contempt power. See R. v. Cunningham, 2010 SCC 10.

[3]  The relationship between a lawyer and client is contractual in nature, and the general rules respecting breach of contract and repudiation apply. Except in criminal matters involving non-payment of fees, if a lawyer decides to withdraw as counsel in a proceeding, the court has no jurisdiction to prevent the lawyer from doing so, and the decision to withdraw is not reviewable by the court, subject to its authority to cite a lawyer for contempt if there is evidence that the withdrawal was done for some improper purpose. Otherwise, the decision to withdraw is a matter of professional responsibility, and a lawyer who withdraws in contravention of this Chapter is subject to disciplinary action by the Benchers. See Re Leask and Cronin (1985), 66 BCLR 187 (SC). In civil proceedings the lawyer is not required to obtain the court’s approval before withdrawing as counsel, but must comply with the rules of court before being relieved of the responsibilities that attach as “solicitor acting for the party.” See Luchka v. Zens (1989), 37 BCLR (2d) 127 (CA).

[[3] amended 11/2024]

Commentary

[1]  If circumstances arise that, in the opinion of the lawyer, require an application to the court for leave to withdraw, the lawyer should promptly inform Crown counsel and the court of the intention to apply for leave in order to avoid or minimize any inconvenience to the court and witnesses.

Commentary

[1]  If the lawyer who is discharged or withdraws is a member of a law firm, the client should be notified that the lawyer and the law firm are no longer acting for the client.

[3]  The obligation to deliver papers and property is subject to a lawyer’s right of lien. In the event of conflicting claims to such papers or property, the lawyer should make every effort to have the claimants settle the dispute.

[4]  Co-operation with the successor lawyer will normally include providing any memoranda of fact and law that have been prepared by the lawyer in connection with the matter, but confidential information not clearly related to the matter should not be divulged without the written consent of the client.

[5]  A lawyer acting for several clients in a case or matter who ceases to act for one or more of them should co-operate with the successor lawyer or lawyers to the extent required by the Code and should seek to avoid any unseemly rivalry, whether real or apparent.

[6]  In the absence of a reasonable objection, a lawyer who is discharged or withdraws continues to have a duty to promptly sign appropriately drafted court orders that have been granted or agreed to while the lawyer was counsel. This duty continues, notwithstanding subsequent instructions of the client.

[[6] added 03/2017; [1] and [5] amended 11/2024]

Commentary

[1]  One such exception is that in R. v. Cunningham, 2010 SCC 10, which establishes that, in a criminal case, if the disclosure of information related to the payment of the lawyer’s fees is unrelated to the merits of the case and does not prejudice the accused, the lawyer may properly disclose such information to the court. See paragraph 31:

Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to privilege, such as the innocence at stake or public safety exceptions (see generally R. v. McClure, 2001 SCC 14 and Smith v. Jones, [1999] 1 S.C.R. 455). Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place. However, nothing in these reasons, which address the application, or non-application, of solicitor-client privilege in disclosures to a court, should be taken as affecting counsel’s ethical duty of confidentiality with respect to payment or non-payment of fees in other contexts.

[amended 11/2024]

Commentary

[1]  It is quite proper for the successor lawyer to urge the client to settle or take reasonable steps towards settling or securing any outstanding account of the former lawyer, especially if the latter withdrew for good cause or was capriciously discharged. But, if a trial or hearing is in progress or imminent, or if the client would otherwise be prejudiced, the existence of an outstanding account should not be allowed to interfere with the successor lawyer acting for the client.