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Code of Professional Conduct
CHAPTER XVI
RESPONSIBILITY TO LAWYERS INDIVIDUALLY
RULE
The lawyer's conduct toward other lawyers should be characterized by courtesy and good faith.1
Commentary
Guiding Principles
1. Public interest demands that matters entrusted to the lawyer be dealt with effectively and expeditiously. Fair
and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The
lawyer who behaves otherwise does a disservice to the client, and neglect of the Rule will impair the ability of
lawyers to perform their function properly.2
2. Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never
be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. The presence of
personal animosity between lawyers involved in a matter may cause their judgement to be clouded by emotional factors
and hinder the proper resolution of the matter. Personal remarks or references between them should be avoided.
Haranguing or offensive tactics interfere with the orderly administration of justice and have no place in our legal
system.3
3. The lawyer should accede to reasonable requests for trial dates, adjournments, waivers of procedural formalities
and similar matters that do not prejudice the rights of the client. The lawyer who knows that another lawyer has
been consulted in a matter should not proceed by default in the matter without enquiry and warning.4
Avoidance of Sharp Practices
4. The lawyer should avoid sharp practice and not take advantage of or act without fair warning upon slips, irregularities
or mistakes on the part of other lawyers not going to the merits or involving any sacrifice of the client's rights.
The lawyer should not, unless required by the transaction, impose on other lawyers impossible, impractical or manifestly
unfair conditions of trust, including those with respect to time restraints and the payment of penalty interest.
5. The lawyer should not use a tape-recorder or other device to record a conversation, whether with a client, another
lawyer or anyone else, even if lawful, without first informing the other person of the intention to do so.5
6. The lawyer should answer with reasonable promptness all professional letters and communications from other lawyers
that require an answer and should be punctual in fulfilling all commitments.6
Undertakings
7. The lawyer should give no undertaking that cannot be fulfilled, should fulfill every undertaking given, and
should scrupulously honour any trust condition once accepted. Undertakings and trust conditions should be written
or confirmed in writing and should be absolutely unambiguous in their terms. If the lawyer giving an undertaking
does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In
the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer
giving it will honour it personally.7 If the lawyer is unable
or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition should be
immediately returned to the person imposing the trust condition unless its terms can be forthwith amended in writing
on a mutually agreeable basis.
8. The lawyer should not communicate upon or attempt to negotiate or compromise a matter directly with any party
who is represented by a lawyer except through or with the consent of that lawyer.8
Acting Against Another Lawyer
9. The lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges
of other lawyers, but should be prepared, when requested, to advise and represent a client in a complaint involving
another lawyer.9
10. The same courtesy and good faith should characterize the lawyer's conduct toward lay persons lawfully representing
others or themselves.
11. The lawyer who is retained by another lawyer as counsel or adviser in a particular matter should act only as
counsel or adviser and respect the relationship between the other lawyer and the client.
Privileged Communications
12. A lawyer who comes into possession of a privileged written communication of an opposing party 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, delete the communication from the system and notify the other
lawyer of its receipt.
(Adopted: Chapter XVI, Commentary 12, Summer Term Convocation, June 7, 2002)
NOTES
1. Cf. CBA-COD 167; CBA 4(1), (2), (4); Ont. 14; ABA ECs 7-37 and 7-38, DR 7-101(A)(1).
2. "... besides the duty which an attorney owes to the court and his client, he is bound as regards the opposite
party and his professional brethren, to conduct his business with fairness and propriety.", Dobie v. McFarlane
(1832), 2 U.C.Q.B. (O.S.) 285 at 323. See also N.B. D-4.
3. Cf. CBA 4(2); Orkin at pp. 131-32. N.B. D-4: "... it is the duty of counsel to 'try the merits of
the cause and not to try each other'."
4. Cf. CBA 4(2); ABA ECs 7-38 and 7-39. "... the attorney, I think, is not bound to lay before his client
every opportunity he may have of shutting out the other party from a hearing, nor bound to take or follow the direction
of his client as to the degree of liberality which he shall observe in his practice.", per Robinson, C.J.
in Shaw et al. v. Nickerson (1850), 7 U.C.Q.B. 541 at 544.
5. Cf. CBA 4(4), "Truth and not trickery, simplicity and not duplicity, candour and not craftiness in the
conduct of legal affairs ...", per Chancellor Boyd in "Address on Legal Ethics" (1905) 4 Can. L.
Rev. 85. ABA EC 7-38: "He should follow counsel customs of courtesy or practice, unless he gives timely notice
to opposing counsel of his intention not to do so." The lawyer who intends to insist on "Peremptory Rules"
should make this clear.
"...[T]o build up a client's case on the slips of an opponent is not the duty of a professional man ... Solicitors
do not do their duty to their clients by insisting upon the strict letter of their rights. That is the sort of
thing which, if permitted, brings the administration of justice into odium.", per Middleton, J. in Re Arthur
and Town of Meaford (1915), 34 O.L.R. 231 at 233-34 (Ont. H.C.).
"...[W]e do not think that [the defendant's attorney's] conduct was marked with candor in not drawing the
plaintiff's attorneys' notice to such objections in the procedure as he had or intended to insist upon until the
day before the opening of the court at which the trial was to be had ...", per Gwynne, J. in Cushman et
al. v. Reid (1869), 20 U.C.C.P. 147 at 153-54.
As to tape recordings, see (1972) 6 Law Soc. U.C. Gaz. 15.
6. Alta. 20: "Failure to reply to letters or other communications from another member is at the very least
discourteous ... this practice frequently places the other member in an awkward and embarrassing position ... and
tends to lower the reputation of the whole profession."
7. Cf. paragraph 11 of the Rule relating to the lawyer as advocate; Ont. 14(6); Alta. 17: "... [T]he use of
such words as 'on behalf of my client' or 'on behalf of the vendor' does not relieve the solicitor giving the undertaking
of personal responsibility." B.C. D-2: "... [D]iff-iculties may arise if [members] give undertakings
on behalf of clients since clients may change instructions or solicitors. An undertaking given by one solicitor
to another can be released or altered only by the latter and not by his client. The giving of an uncertified cheque
is an undertaking, except in the most unusual and unforeseen circumstances the justification for which rests upon
the member, that such cheque will be paid ...".
8. Cf. CBA 4(3); B.C. D-1(a); Alta. 16; N.B. D-3; ABA EC 7-18; Nelson v. Murphy et al. (1957), 9 D.L.R.
(2d) 195 (Man. C.A.) per Tritschler, J.A. at p. 213: "The principle was laid down long ago ... that once it
appears a person has an attorney there can be no effective dealing except through him ... a lawyer 'should never
in any way ... attempt to negotiate or compromise the matter directly with any party represented by a lawyer except
through such lawyer'."
"... [The lawyer should] not hold any communication of the kind that passed here, except with the solicitor
of the opposite party, and even had the defendants come to the office of then plaintiff's solicitor, as the later
alleges, of his own accord, he should have refused to negotiate with him personally", per Van Koughnet, C.
in Bank of Montreal v. Wilson (1867), 2 Chy. Chs. 117 and 119 (U.C. Chy. Chs. 117 and 119 (U.C. Chy.).
9. Cf. CBA 5(1); IBA C-4; ABA EC 2-28; Orkin at pp. 97-98. See also paragraph 9 of the Rule relating to making
legal services available.
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