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The Emerging Professional Issues Initiative is designed to assist lawyers to deal with economic and social trends that have an impact on the practice of law. The objective is to help keep lawyers in business and to ensure that the legal profession remains a good business to be in.
Input from the Profession
Standards of professional ethics form the backdrop for everything lawyers do. In adhering to the codes of conduct set by our professional associations, we uphold the long-standing values of our profession and ensure protection of the public. Some rules, such as the duty to act with integrity, will never change. However, other rules need to be revised to reflect changes in our society and in the way lawyers work.
The CBA's Ethics and Professional Issues Committee is reviewing the CBA's Code of Professional Conduct (CBA Code) and making recommendations for its revision. We have worked throughout 2000-2001 to identify possible changes to the CBA Code. It is time to ask what you think about these issues . Your input is crucial in helping us to develop the recommendations for changes to submit to the CBA membership for a vote.
Please forward your responses by May 31, 2002 in the electronic response form or by fax, email or regular mail to:
Kathryn Berge, Q.C., Chair
Ethics and Professional Issues Committee
c/o Tamra Thomson, Director - Legislation and Law Reform
Canadian Bar Association
902-50 O'Connor Street
Ottawa, Ontario K1P 6L2
Fax: (613) 237-0185
E-mail: tamrat@cba.org
Table of Contents
Part 1 - BACKGROUND
Part 2 - THE ISSUES
Part 3 - NEXT STEPS
Appendices
Appendix 1 - CBA Code. 
Appendix 2 - Resolutions adopted by the CBA's National Council.
Appendix 3 - Pertinent rules from the CBA Code and the codes of conduct of other law societies.
Appendix 4 - Principles of Civility for Advocates, Advocates Society of Ontario.
Part 1 - BACKGROUND
I. Role of the CBA Code
The CBA Code plays an integral role in the Canadian legal profession. Some Canadian jurisdictions, including Newfoundland, Prince Edward Island, Northwest Territories, Nunavut and Yukon, have adopted the CBA Code, with occasional modifications, as their own. In other jurisdictions, law societies refer to the CBA Code when they interpret or amend their codes. Academics, law students and Canadian lawyers working outside Canada refer to the CBA Code when they need to know Canadian standards of conduct. In this era of globalized law practice and increased mobility between Canadian jurisdictions, it will become more important to have common conduct rules for all Canadian lawyers.
II. The Revision Process
Updating and revising the CBA Code is a lengthy and demanding process, with several distinct stages.
Phase 1 - now underway
1. Identify issues.
2. Prepare consultation document. Request input from CBA members. Phase 2 - dependent upon funding being available
1. Assemble comments and decide changes to propose.
2. Draft changes to the CBA Code.
3. Consult members on proposed changes.
4. Modify changes to reflect feedback from the membership.
5. Present resolutions for membership to vote on at an annual meeting. The CBA adopted its first Code of Professional Conduct in 1920. The CBA Code was last revised in 1987. Since then, several resolutions have been passed modifying the CBA Code. These resolutions will be integrated into the Committee's proposed revisions (Phase 2). In some cases, these resolutions may have been overtaken by the realities of present practice. They are included in the discussion in this paper, as they fit into a broader issue.
This consultation paper presents the issues that the Committee believes need to be debated and upon which the Committee seeks direction.
III. Format
The CBA Code, like most law society codes of conduct, consists of general rules, followed by specific commentaries on the application of the general rules. For example, Rule II in the CBA Code requires lawyers to protect the confidentiality of client information. The commentaries elaborate on the rule, discussing its application and exceptions. In this paper we refer on a number of occasions to the applicable rules and commentaries.
We have provided the text of the pertinent rules in Appendix 2 . These include the CBA Code and the other codes from law societies across the country.
Part 2 - Issues
I. Issues Relating to the Legal Profession
A. Exceptions to Solicitor-Client Confidentiality
Question 1
When is it permissible, or necessary, for a lawyer to disclose solicitor-client confidences?
a) when it is real evidence of a crime?
b) when a person is in imminent danger of harm?
c) when the information concerns the physical or sexual abuse of a child, an elderly, incompetent or otherwise vulnerable person?
Solicitor-Client Confidentiality - Current Rule
The CBA Code sets out the rule on solicitor-client confidentiality in Chapter IV. Lawyers have discretion to disclose solicitor-client confidences in certain exceptional circumstances. These include:
a) when disclosure is authorized by the client (Commentary 9);
b) when the lawyer's conduct is in issue (Commentary 10);
c) when a crime is likely to be committed (Commentary 11);
d) when there are reasonable grounds to believe that a dangerous situation is to occur in a court facility (Commentary 12); and
e) when required by law to disclose the information (Commentary 13). Disclosing confidential information is mandatory when:
a) the lawyer has reasonable grounds to believe that a crime involving violence is likely to be committed (Commentary 11);
b) disclosure is required by law (Commentary 11); and
c) where the client specifically instructs that the information be disclosed.
(a) Real Evidence
Controversy over a lawyer's duty to disclose confidential client information arose during the prosecutions of Karla Homolka and Paul Bernardo. On the instructions of his client, Mr. Bernardo's lawyer retrieved videotapes of some of the alleged offences from his client's house. However, the lawyer did not immediately turn them over to the police. The lawyer was found not guilty of obstructing justice, in part because the Law Society of Upper Canada rules were not clear on the duties of a lawyer in this type of situation (R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.)).
There are different approaches to the disclosure of real evidence in different parts of the country. For example, Chapter 10, Rule 20 of the Law Society of Alberta Code of Professional Conduct requires a lawyer to turn over any real evidence of a crime to the appropriate authorities. In British Columbia, there is no specific rule. However, the Law Society of British Columbia generally advises lawyers to notify the Crown of the evidence, claim solicitor-client privilege, and leave the courts to decide whether it should be disclosed. The Law Society of British Columbia is considering whether a rule is needed.
In light of the Murray case, the Law Society of Upper Canada's special committee on this issue has proposed a draft rule (4.01(1)) for discussion purposes. The draft rule would, among other things, prohibit lawyers from concealing the evidence or dealing with it in a way which would lead to an obstruction of justice.
In R. v. McClure, [2001] SCC 14, the Supreme Court of Canada examined the balance between solicitor-client privilege and an accused's right to make full answer and defence. The case involved a sexual assault complainant's communications with a lawyer concerning a civil action against the accused. Did the accused have a right to disclosure of the information? The Court recognized that solicitor-client privilege is fundamental to the administration of justice, but held that the privilege may be displaced if an accused's innocence is at stake and there is no other way for the accused to demonstrate reasonable doubt of guilt.
(ii) Questions for the Profession What should the CBA Code say about the disclosure of real evidence? In what circumstances may a lawyer disclose real evidence? In what circumstances must a lawyer disclose real evidence? What effect will new rules have on the ability of lawyers to properly advise and represent their clients?
(b) Imminent Danger or Harm
In Smith v. Jones, [1999] 1 S.C.R. 455, the Supreme Court of Canada considered solicitor-client privilege in the context of a psychiatric report. Mr. Jones was convicted of aggravated assault. His lawyer retained Dr. Smith, a forensic psychiatrist, to provide a psychiatric assessment of Mr. Jones, which the lawyer hoped to use at the sentencing hearing. Dr. Smith concluded that Mr. Jones was dangerous and would likely commit other similar offences and kill someone unless he received treatment. When Dr. Smith learned that the lawyer was not going to present his report at the sentencing hearing, he asked the court if he could disclose the information given to him in confidence by Mr. Jones. Both the British Columbia Supreme Court and the Court of Appeal held that Dr. Smith could disclose the information because there is a public safety exception to the confidentiality rule. The Court of Appeal, however, found that court rules could not require Dr. Smith to disclose the information.
The Supreme Court of Canada ruled that the doctor's information concerning public safety could be disclosed. It held that the solicitor-client privilege can be set aside when there are serious issues of public safety. It found that there are three factors to be taken into account when deciding if public safety concerns outweigh solicitor-client privilege:
(1) Is there a clear risk to an identifiable person or group of persons?
(2) Is there a risk of serious bodily harm or death?
(3) Is the danger imminent? Lawyers in all areas of practice, not just criminal law, face the challenge of balancing the prevention of future harm with their professional obligations. Family lawyers may hear about potential spousal assault. Estate lawyers may be advised of a planned suicide, which arguably does not fit within the current rule because it is not a crime. Business lawyers may be consulted about a client's fraudulent activities, which may cause economic harm to others.
In some Canadian jurisdictions, law society rules say that a lawyer may disclose confidential client information when the disclosure is necessary to prevent a crime involving death or serious bodily harm (e.g. British Columbia (Chapter 5, Rule 12)). In Ontario, Rule 2.03(3) adopts the test in Smith v. Jones, supra as the only exception bearing on the prevention of harm. In other jurisdictions, a lawyer must disclose confidential information to prevent a crime which is likely to result in death or bodily harm (e.g. Alberta (Chapter 7, Rule 8)).
(ii) Questions for the Profession The CBA Code says that a lawyer may disclose confidential client information to prevent a crime and that disclosure is "mandatory when the anticipated crime is one involving violence" (Chapter IV, Commentary 11). Should there be a more detailed commentary on when disclosure is permissible in situations of imminent harm? Is it acceptable, for example, for a lawyer to disclose information about a client's planned suicide, even though suicide is not a crime? Should the CBA Code define circumstances in which a lawyer must disclose confidential client information? (See the discussion in the next section on abuse of the vulnerable)
(c) Vulnerable Persons
CBA Resolution 91-05-A called on the CBA to draft guidelines for the legal profession concerning child abuse, including child sexual abuse. At this time, we do not have any guidelines in place.
Under the child welfare legislation of almost all Canadian jurisdictions, professionals who become aware of child abuse must bring the information to the attention of the police or the child welfare authorities. However, most of this legislation specifies that it does not abrogate solicitor-client privilege. This exempts solicitor-client communications from mandatory disclosure.
Although this issue tends to focus on abuse of children, there appears little reason to distinguish between child abuse and abuse of the vulnerable generally.
Arguably, current rules governing disclosure in cases of imminent harm (see previous section) apply to abuse of the vulnerable. In Ontario, for example, disclosure of solicitor- client confidences is permitted when there is a risk of death, serious bodily harm or serious psychological harm substantially interfering with health or well-being of any person (Rule 2.03).
(ii) Questions for the Profession Should lawyers have an obligation to disclose abuse of the vulnerable in all situations? If not, does Chapter IV of the CBA Code need to outline more specifically when a lawyer may breach client confidentiality and disclose information concerning child abuse?
B. Alternate Dispute Resolution
Question 2
What rules, if any, should the CBA Code set out for lawyers who act as mediators, arbitrators, investigators or other alternative dispute resolution neutrals?
The CBA Code does not discuss appropriate conduct for lawyers who act as mediators or as neutrals assisting with dispute resolution. Chapter V, Impartiality and Conflict of Interest Between Clients, does specify that conflict of interest rules do not prevent a lawyer from attempting to arbitrate or settle a dispute between clients (Commentary 7).
The number of lawyers who work as mediators, arbitrators, investigators and other neutrals has grown exponentially over the last few years. Mediators who are members of a law society work in many fields, including labour law, construction law, family law, estates and medical malpractice. This includes Quebec notaries, whose professional responsibilities include representing two or more parties whose interests may differ.
When lawyers act as arbitrators, it is usually evident that they are not acting for any side in a dispute. Arbitrators' associations have developed principles to guide the conduct of people, including lawyers, who arbitrate disputes. There is, therefore, a less compelling case to develop separate conduct rules for arbitrators.
A lawyer who works as a mediator, investigator or other neutral does not, of course, act in the same capacity as a lawyer representing a client. Nevertheless, lawyers are expected to maintain high standards of ethics in any of their endeavours. The question is whether alternate rules of conduct should apply to lawyers when they work as these types of ADR neutrals.
Some law societies in Canada have grappled with this question. The Law Society of Alberta, for example, has chosen not to regulate this aspect of practice. In Ontario, lawyers are required to advise the parties in a mediation that they are not acting as counsel for the parties and that communications are not subject to solicitor-client privilege (Rule 4.07). They are not to provide legal advice only legal information.
Since 1984, the Law Society of British Columbia has regulated family mediation (see Professional Conduct Handbook on Family Law Mediation, Appendix 2). These rules stipulate, for example, that a lawyer who has been consulted by a party cannot mediate a family law dispute involving that party, if the subject of the consultation may reasonably be expected to become an issue during the mediation. As well, once a lawyer has acted as a mediator, he or she cannot act for one of the parties in the matter. British Columbia's Appendix 2 is currently under review.
As some jurisdictions move towards mandatory mediation in judicial and quasi-judicial proceedings, more members of the profession will offer mediation services. Some have asked, however, whether a strict code of conduct for lawyer-mediators will put lawyers at a competitive disadvantage with non-lawyer mediators.
In Ontario, lawyers have a duty to consider ADR alternatives and, if appropriate, canvass those options with their clients (Rule 2.02(3)). CBA Resolution 99-05-A goes further, requiring the CBA Code to incorporate "a positive, continuing obligation to canvass with each client, in a fully informed manner, all available dispute resolution processes". After January 2002, Quebec notaries have a similar obligation. This issue is addressed under "Other Issues", below (page 24).
(iii) Questions for the Profession Should the CBA Code provide specific rules governing lawyers who act as mediators, investigators and other neutrals? If so, what should the rules be? Should they be a general expression of principles or a detailed codification of rules? What rules of confidentiality, if any, should apply to a lawyer working as a mediator or arbitrator? Must a lawyer acting as a mediator or arbitrator advise a participant of the need for independent legal advice? Can a lawyer work as a mediator in a dispute after having been consulted by one of the parties independently? Should lawyers be allowed to give legal advice to the parties in a mediation? Should the CBA Code provide that lawyers must obtain certain training standards to act as mediators?
C. New Communication Technologies
Question 3
Are the existing rules sufficient to govern the use of the internet and of wireless communication devices?
(i) Current RuleThe CBA Code does not have any specific rules addressing new technologies. However, other rules in the CBA Code would appear to cover a number of the potential ethical pitfalls of using new technologies. For example:
- Chapter IV - Confidential Information requires lawyers to hold client information in strict confidence;
- Chapter V - Impartiality and Conflict of Interest Between Clients prohibits lawyers from acting where there is a conflict of interest;
- Chapter XVII - Practice by Unauthorized Persons requires lawyers to help prevent the unauthorized practice of law. We deal with advertising as it relates to the internet under "Advertising", below:
One doesn't have to go too far back to remember a time without e-mail, voice mail, the internet, CD ROM, video-conferencing, and wireless communications. Now, these technological tools are part of every day life in Canada and part of most law practices. Do we need to change the CBA Code as a result of these technological advancements?
In 1999, the National Ethics Group of the Federation of Law Societies circulated Guidelines on Ethics and the New Technology. In summary, the Federation Guidelines suggest the following rules of conduct:
(A) Technology and the Duty of Competence
- "A lawyer must maintain a state of competence on a continuing basis in all areas [in] which the lawyer practices." This includes being able to use appropriate technology, such as child support calculation software, litigation support software and internet research tools.
(B) Practising Law on the Internet
- Upholding the law of other jurisdictions - "A lawyer who practises law in another jurisdiction by providing legal services through the internet must respect and uphold the law of the other jurisdiction, and must not engage in unauthorized practice in that jurisdiction."
- Privileged communications - "A lawyer who comes into possession of a privileged written communication of an opposing party ... [when] the communication is not intended to be read by the lawyer, must not use the communication nor the information contained therein in any respect and must immediately return the communication to opposing counsel, or if received electronically, purge the communication from the system."
- Conflict of interest - "To ensure that there is no breach of the obligations to avoid conflict of interest when delivering legal services using the internet or e-mail, a lawyer must determine the actual identity of parties with whom the lawyer is dealing."
- Capacity in which lawyer is acting - "Where there may be confusion as to the capacity in which a lawyer is acting, the lawyer must ensure that such capacity is made as clear as possible to anyone with whom the lawyer deals."
(C) Confidentiality and the Internet
- "A lawyer using electronic means of communication must ensure that communications with or about a client reflect the same care and concern for matters of privilege and confidentiality normally expected of a lawyer using any other form of communication. This would include e-mail, whether via the internet or otherwise, or the use of cellular telephones or fax machines to transmit confidential client information." Although internet communications are not considered less private than other communications methods, "a lawyer using such technologies must develop and maintain a reasonable awareness of the risk of interception or inadvertent disclosure of confidential messages and how they can be minimized." It may be necessary to use encryption software in some situations.
(D) Software Piracy
- "Software piracy is illegal and therefore unethical." Lawyers must ensure that they and the people they employ, including support staff, paralegals and articling students, respect software licensing rules.
(E) Advertising
- Applicability of advertising policies - The Federation Guidelines outline some restrictions on advertising through new technologies. "Advertising" is defined as "any statement, oral, written or electronic, made by a lawyer or firm to the public in general or to one or more individuals and having as a substantial purpose the promotion of the lawyer or firm".
- Identification of the lawyer - "A lawyer making representations in generally accessible electronic media must include the name, law firm, mailing address, licensed jurisdiction of practice, and e-mail address of at least one lawyer responsible for the communication's content in the communication." This is because readers of electronic messages may be almost anywhere in the world and there is a greater potential for confusion about the lawyer's identity, location and qualifications.
- Multi-jurisdictional advertising - "Where a lawyer is entitled to practice in more than one jurisdiction, and these jurisdictions are identified in representations on electronic media, that lawyer must ensure that the advertisement complies with the advertising rules governing legal advertising in each jurisdictions [sic]."
- Restrictions on indiscriminate distribution - The Guidelines provide three examples of "interactions with the public which are not compatible with the best interests of the profession, the administration of justice and society generally". They are (1) advertising professional services directly and indiscriminately to a substantial number of newsgroups or electronic e-mail addresses; (2) posting advertising messages to newsgroups, listservs or bulletin boards whose topic scope does not include the proposed advertisement; and (3) advertising which substantially interferes with another's use of the media or invades the privacy of other users.
The Guidelines, along with an appendix on software piracy, can be found at the Federation of Law Societies of Canada web site.
(iii) Questions for the Profession Should the CBA Code adopt provisions similar to the Federation of Law Societies' Guidelines? Are there any issues that are not covered by the Guidelines that the CBA Code should address?
D. Civility and Collegiality
Question 4
What changes to the CBA Code are needed to address concerns about reduced civility within the profession?
Chapter IX - The Lawyer as Advocate requires lawyers to be courteous and civil to the court or tribunal and to those engaged on the other side. A consistent pattern of rude, provocative or disruptive conduct may merit disciplinary action (Commentary 14).
Many believe that one of the most pressing problems facing the profession is decreased civility and courtesy between counsel. The perception is that lawyers are more aggressive and rude with their colleagues and others. Law society practice advisors receive frequent calls complaining about lawyers' discourteous behaviour. On the other hand, some believe there has actually been an increase in civility in recent years.
Decreased civility frequently hinders client interests by lessening the chances for settlement and thereby increasing legal costs. It also arguably tarnishes the profession's image. In the long term, declining professional courtesy makes the practice of law less enjoyable and has therefore been cited as a reason why lawyers appear to be leaving the profession in greater numbers.
Some law societies are hesitant to amend their current rules, believing that adding new code of conduct requirements will not solve the problem. The simple truth, they say, is that it's not as kind and gentle a world as it was 10 years ago. If courts started naming and punishing discourteous lawyers, that would help to solve the problem. Some law societies try to deal with civility complaints by holding administrative "conduct reviews" with the lawyer in question.
In 2000, the Law Society of Upper Canada amended its rules to require lawyers to be courteous to "all persons with whom the lawyer has dealings in the course of his or her practice" (Rule 6.03(1)). The Rule used to require courtesy only to other lawyers.
The Barreau du Quebec's Code of Ethics for Advocates states that it is derogatory to the dignity of the profession to harass another person or to harm another person in a malicious manner (Rule 4.02.01(a)).
One potential approach is to change in the definition of "court" in the CBA Code. Currently,"court" is defined as including "conventional law courts and generally all judicial and quasi-judicial tribunals" (page xi). This could be amended to encompass legal processes that take place outside the courtroom for example, examinations for discovery and alternative dispute resolution processes. This would extend the Chapter IX civility obligation to all forums where a lawyer practices. This has been done in Ontario, where the word "tribunal" includes "courts, boards, arbitrators, mediators, administrative agencies, and bodies that resolve disputes, regardless of their function or the informality of their procedures" (Rule 1.02).
In summer 2001, the Advocates' Society in Ontario published a pamphlet entitled Principles of Civility for Advocates, which is intended as an educational tool to encourage civility in the justice system. It contains a list of over 75 principles, covering relations with opposing counsel, communications with others, trial conduct and counsel's relations with the judiciary.
(iii) Questions for the Profession Should the CBA Code include more specific rules governing professional civility? Should the current rules be expanded to include civility outside judicial or quasi-judicial proceedings? Alternatively, should the CBA Code include Guidelines similar to those suggested by the Advocates' Society?
II. Issues Relating to the Business of Law
E. Multi-Disciplinary Practices (MDPs)
Question 5
What changes need to be made to the CBA Code to reflect the CBA position on MDPs?
(i) Current RuleThere are no specific rules in the CBA Code concerning MDPs. However, Chapter XI - Fees prohibits lawyers from sharing fees with non-lawyers (Commentary 8).
During the last few years, the subject of MDPs has been hotly debated in the legal profession. The CBA's position on MDPs arises from CBA Resolution 00-03-A , as amended by CBA Resolution 01-01-M .
MDPs are business arrangements in which lawyers (including Quebec notaries) and non- lawyers practice together to provide a broad range of advice, including legal advice, to consumers, and which encompass a variety of forms, from highly integrated organizations with lawyers and non-lawyers working under one ownership structure to loose referral networks.
As outlined in the above resolutions, the CBA's position is that lawyers be permitted to share fees with non-lawyers in MDPs. However, lawyers must have "effective control" over the practice and business of the MDP. MDPs should be required to adhere to the core values, ethical obligations, standards and rules of professional conduct of the legal profession. Lawyers should not practice in an MDP that fails to comply with these requirements.
The core values of the legal profession include: respect for the confidentiality of client information; protection of solicitor-client privilege; avoidance of conflict of interest; independence of the legal professional; avoidance of the unauthorized practice of law; and the duty of loyalty to the client. Law societies are urged to develop rules to ensure that lawyers do not practice in MDPs with other service providers having conflicting ethical responsibilities. For instance, auditors are obliged to disclose a client's financial information, while lawyers are obliged to protect the confidentiality of client information. Having auditors and lawyers both provide services to an MDP client could be problematic.
In Ontario, lawyers may share fees with non-lawyers in an approved MDP (Rule 2.08(10)). However, under that rule, lawyers must, among other things, ensure that clients understand they are receiving legal services from the lawyer supplemented by services from a non-lawyer (Commentary, Rule 2.01(1)). Advice from the non-lawyer on other matters must be provided separate from the retainer for legal advice (Commentary, Rule 2.01(1)). Lawyers must ensure their non-lawyer partners comply with the Rules (Rule 2.04(13)).
(iii) Questions for the Profession Aside from the current prohibition against fee sharing, what portions of the CBA Code need to be amended to ensure that lawyers can practice in MDPs in a way which respects the profession's core values and ethical standards?
F. Advertising
Question 6
Do changes in the law and how it is practised call for a change in the rules on advertising? If so, how?
(i) Current RuleChapter XIV - Advertising, Solicitation and Making Legal Services Available provides that lawyers should make legal services available in a manner which commands respect and confidence and which is compatible with the integrity and independence of the profession. Advertising must not detract from the integrity of the profession and must not be misleading, undignified or in bad taste (Note 3).
Increased competition in the legal marketplace, the advent of new communications technologies and freedom of expression considerations under section 2(b) of the Canadian Charter of Rights and Freedoms (see, e.g., Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232) have prompted some law societies to revisit their rules concerning advertising. Attention has been focussed on rules addressing: use of the title "specialist"; limitations on firm names; limitations on product endorsements; the use of testimonials; publication of fees or fee comparisons; and the requirement of "good taste".
The Law Society of Alberta has decided against "good taste" requirement for advertising because of concerns about freedom of expression and the subjectivity of "good taste" (Chapter 5, Rule 2). The Barreau du Quebec also has no "good taste" requirement. The Law Society of Upper Canada, on the other hand, voted in 2000 to maintain the "good taste" requirement in advertising legal services. (Rules 3.04 and 3.05).
As discussed in the previous section on new communications technologies, the National Ethics Group of the Federation of Law Societies circulated Guidelines on Ethics and the New Technology in 1999. The Guidelines incorporate several advertising rules, requiring lawyers: to identify themselves in electronic mail messages; to comply with advertising rules in each jurisdiction in which they are entitled to practise; and to refrain from the indiscriminate distribution of advertising messages through the internet.
The general argument favouring the use of marketing devices such as testimonials, fee comparisons and non-traditional law firm names is that they promote competition and consumer choice. This arguably lowers the cost of legal fees and improves access to justice. On the other hand, such techniques can frequently mislead consumers. They also arguably promote the conception of legal services as a commodity rather than an essential public service.
(iii) Questions for the Profession Should the CBA Code address issues such as fee comparisons with caveats, testimonials and other advertising techniques? If so, how? Does it need to be more specific about the appropriateness or taste of advertising? Should the CBA Code be revised to specifically address new technologies, such as e-mail distribution and the internet?
G. Soliciting clients
Question 7
Does the CBA Code need more precision in its rules regarding the solicitation of clients? If so, what is needed?
(i) Current RuleChapter XIV - Advertising, Solicitation and Making Legal Services Available provides that the general principles concerning advertising, also apply to solicitation (Commentary 3).
Rules governing solicitation of clients generally distinguish between clients who are represented by a lawyer and those who are not. They also distinguish between general solicitation through, for example, a mailing or advertising campaign directed at a segment of society (for example, a brochure mailed to a group of high tech companies) and direct solicitation of a specific client.
For clients already represented by counsel, there is a distinction between trying to lure individual clients away from their current lawyers and offering legal services to a whole group of people, some of whom may already have legal representation. In Ontario, lawyers are not permitted to solicit individuals who have retained a lawyer for a particular matter to change lawyers for that matter (Rule 3.06(2)(d)). Wider marketing campaigns do not generally fall within this prohibition. The Barreau du Quebec prohibits lawyers from making pressing or repeated inducements to individuals to retain the lawyer's services (Rule 4.02.01(i)).
For clients not already represented by counsel, some law societies try to protect those who are vulnerable and therefore susceptible to exploitation. The Law Society of Alberta, for instance prohibits a lawyer from soliciting a person "who has suffered a traumatic experience and has not yet had a chance to recover" or from engaging in "other behaviour that takes advantage of a [potential] client's vulnerability" (Chapter 5, Commentary G.2).
The Law Society of Upper Canada rule on soliciting clients who are vulnerable or who have not yet recovered from a traumatic experience prohibits lawyers from using "unconscionable or exploitive means that bring the profession or the administration of justice into disrepute" (Rule 3.06(2)). Where an advertisement is likely to influence people who are vulnerable because of a specific event, the Barreau du Quebec requires that the advertisement be addressed only to the general public (Rule 5.05).
CBA Resolution 00-04-A, Guidelines for Lawyers Acting for Survivors of Aboriginal Residential Schools , urges law societies to adopt guidelines for lawyers acting for or seeking to act for survivors of Aboriginal residential schools. The first suggested guideline is "Lawyers should not initiate communications with individual survivors of Aboriginal residential schools to solicit them as clients or inquire as to whether they were sexually assaulted".
Law society rules generally prohibit any type of solicitation that amounts to coercion, duress or harassment, which derogates from the dignity of the profession or which brings the administration of justice into disrepute.
(iii) Questions for the Profession Does the CBA Code need to specify more precisely the types of client solicitation that is and is not acceptable? Should the CBA Code reflect the concerns raised the CBA's resolution on Residential School Guidelines?
H. Referral Fees
Question 8
Should lawyers be allowed to earn and pay referral fees? If so, what further guidelines are needed?
(i) Current RuleChapter XI - Fees prohibits lawyers from sharing fees with non-lawyers who refer business to the lawyer. It prohibits lawyers from giving any financial or other reward to such persons for referring business (Commentary 8).
Law society rules on referral fees vary across the country. In many jurisdictions, a lawyer can pay another lawyer a referral fee, as long as the client has given informed consent. However, a lawyer cannot pay a non-lawyer a fee, unless it is a token amount or is paid in recognition of referrals made over a period of time and is not linked to the referral of a specific client.
Proponents of referral fees argue that they:
1. encourage lawyers to pass on work to lawyers more capable of serving the client's needs;
2. eliminate a distinction in treatment between small or solo law firms and larger firms, in which lawyers can compensate each other for mutually referring clients; and
3. help clients by promoting the use of other professionals for their non-legal needs.
Opponents of referral fees argue that they:
1. create the possibility of shopping around for the best referral fee, rather than for the best person to whom to make the referral; and
2. encourage the brokerage of legal business, which will not necessarily operate to the benefit of clients ;
3. may promote unnecessary referrals to non-lawyer professionals to generate referral revenue.
(iii) Questions for the Profession Should the CBA Code be changed to allow referral fees? Should there be limitations on how the referral fee is calculated? Is client consent essential when a referral fee is to be paid or received? Should the rules concerning referral fees differ between referrals to lawyers and non-lawyers?
III. Issues relating to employment in law
I. Discrimination and Harassment
Question 9
Should the anti-discrimination rules in the CBA Code be expanded? If so, how?
(i) Current RuleChapter XX - Non-Discrimination provides that lawyers must not discriminate on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status or disability. CBA Resolution 96-02-A added "language" to the listed grounds.
CBA Resolution 00-01-M, Racial Equality in the Legal Profession , requires the CBA to "cooperate with the Federation of Law Societies to develop model employment guidelines regarding interviewing, hiring, and retention processes in law firms and legal departments, to be incorporated into Codes of Professional Conduct".
In 1993, the CBA published the report of its Gender Equality Task Force, entitled Touchstones for Change: Equality, Diversity and Accountability. The report challenged the legal profession to confront discriminatory hiring and promotion practices, to address the inequalities that persisted within the profession and to remove the barriers that prevented equal access. Since then, the CBA has passed resolutions to put the Task Force recommendations into effect, including the addition of Chapter XX - Non- Discrimination. Law societies have also reviewed their rules to determine what changes might be necessary. The Law Society of Alberta, for example, recently added commentary on sexual harassment to reflect case law and the Touchstones Report (Chapter 1, Rules 8 and 9). Quebec's Professional Code prohibits discrimination and sexual harassment (Rule 4.02.01). (R.S.Q. 1973 c. C-26, ss. 57, 59, 59.1).
(iii) Questions for the Profession Are amendments to the non-discrimination provisions of the CBA Code necessary? If so, what rules should be put in place and what commentary should be added?
IV. Other issues
The above are the major issues on which your input is needed. Other emerging professional conduct issues are either dealt with satisfactorily by the current CBA Code or have less widespread significance.
The other changes we propose to make are:
1. Integration of resolutions previously passed by the CBA membership. These resolutions, which included in the Resolutions attached as Appendix I, need to be integrated into the CBA Code when the revised draft is prepared:
2. Annotation of advertising rules in different jurisdictions. The Committee believes it would be helpful to include an annotation which compares advertising rules in the various codes of conduct from across the country.
3. Disclosure of colleagues' misconduct. The Committee believes it would be useful to include a Commentary which deals with colleagues of lawyers who are suffering from substance abuse. In particular, the Commentary would suggest a process by which a colleague could address conduct concerns arising from such conditions. One question which has been raised is whether a colleague assisting a lawyer in a counselling capacity only should be exempted from the usual requirements to report misconduct.
4. Quebec notaries. Quebec notaries advise clients on a wide range of matters but do not engage in litigation or advocacy. Unlike lawyers in common-law jurisdictions, Quebec notaries advise and take instructions from two or more parties who are adverse in interest. The Committee believes that their unique method of practice should be recognized in the CBA Code.
Comments on these issues are welcome.
Part 3 NEXT STEPS
Please forward your responses by May 31, 2002, in the electronic form or by fax, email or regular mail to:
Kathryn Berge, Q.C., Chair
Ethics and Professional Issues Committee
c/o Tamra Thomson, Director - Legislation and Law Reform
Canadian Bar Association
902-50 O'Connor Street
Ottawa, Ontario K1P 6L2
Fax: (613) 237-0185
E-mail: tamrat@cba.org
We welcome comments on the issues outlined in this paper and on any other professional conduct issues which deserve consideration.
We will be drafting specific revisions based on the comments we receive from this consultation. The profession will be consulted further as this project unfolds.
Appendix I contains the text of the CBA resolutions mentioned in this consultation document. Appendix II contains the text of Canadian professional conduct code provisions on the principal issues in this consultation.
Those documents are in Adobe Acrobat format. You will need the Adobe Acrobat Reader software in order to view and print it. You can download the Adobe Acrobat Reader by clicking on the icon below.
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