|
Code of Professional Conduct
CHAPTER III
ADVISING CLIENTS
RULE
(a) The lawyer must be both honest and candid when advising clients.1
(b) A lawyer must use reasonable efforts to ensure that the client comprehends the lawyer's advice and recommendations.
Commentary
Scope of Advice
1. The lawyer's duty to the client who seeks legal advice is to give the client a competent opinion based on 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, clearly disclosing what the lawyer honestly thinks about
the merits and probable results.2
2. The lawyer should clearly indicate the facts, circumstances and assumptions upon which the lawyer's opinion
is based, particularly where the circumstances do not justify an exhaustive investigation with 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 merely make comments with many qualifications.
3. The lawyer should be wary of bold and confident assurances to the client, especially when the lawyer's employment
may depend upon advising in a particular way.3
4. Whenever it becomes apparent that the client has misunderstood or misconceived what is really involved, the
lawyer should explain as well as advise, so that the client is informed of the true position and fairly advised
about the real issues or questions involved.4
Special Needs Clients
5. Legal advice must be understood and appreciated by clients in order to be of value. A lawyer's duty to ensure
understanding will vary according to the client's individual attributes. It is necessary to be more painstaking
with an unsophisticated client or one who lacks education, experience, financial acumen or intelligence. A lawyer
should also take into account client characteristics such as age, temperament, cultural background, facility with
the language and mental and physical health, and should adjust the manner, thoroughness and complexity of communications
accordingly. Note that if a clientappears to lack capacity, commentary 6 may apply.
Incapacity
6. When a client is unable to provide proper instructions in a matter due to incapacity:
(a) the lawyer must make reasonable efforts to cause the appointment of a legal representative for the client;
and
(b) pending such appointment, the lawyer must continue to act in the best interests of the client to the extent
that instructions are implied or as otherwise permitted by law.
Whether a client is able to make reasonable judgments respecting the client's affairs is a legal issue rather than
an ethical one. However, it may be proper in some circumstances to accept instructions from a minor or from a client
who appears or has been adjudged to lack capacity in certain matters. Conversely, one who does not appear to lack
capacity initially may be found, as a matter progresses, to be unable to provide proper instructions to counsel.
In most circumstances a lawyer who believes a client to be incapable of giving instructions must decline to act.
If this inability develops during an ongoing matter, the lawyer must use reasonable efforts to have a legal representative
appointed. What is reasonable depends on all relevant circumstances, including the importance and urgency of the
matter on which instructions are required. If a significant right or remedy of the client is in jeopardy and family
members are uncooperative in the appointment, the lawyer's role must be more active.
Pending the appointment, the lawyer should preserve and protect the client's position and interests to the extent
possible while avoiding steps that would normally require an exercise of judgment and provision of instructions
by the client. However, it may be proper to take certain actions on the basis of implied instructions, such as
filing a statement of claim on a client's behalf when a limitation period is about to expire. Implied instructions
also include a waiver of confidentiality as reasonably necessary to implement and complete the appointment process.
If a legal representative is not appointed after all reasonable efforts have been made, the lawyer must withdraw
from the representation.
Giving Independent Advice
7. Where the lawyer is asked to provide independent advice or independent representation to another lawyer's client
in a situation where a conflict exists, the provision of such advice or representation is an undertaking to be
taken seriously. It involves a duty to the client for whom the independent advice or representation is provided
that is the same as in any other lawyer and client relationship and ordinarily extends to the nature and result
of the transaction. While the normal obligation of independent counsel is to ensure the voluntariness of a transaction
and the client's understanding of it, factors such as the relationship between the parties, an apparent inequality
of bargaining position or an agreement that appears heavily weighted in favour of one party may require the lawyer
to make further inquiries.
Second Opinion
8. If the client so desires, the lawyer should assist in obtaining a second opinion.
Advice on Non-legal matters
9. In addition to opinions on legal questions, the lawyer may be asked for or expected to give advice on non-legal
matters such as the business, policy or social implications involved in a 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 advises on such matters should, where and to the extent necessary,
point out the lawyer's lack of experience or other qualification in the particular field and should clearly distinguish
legal advice from such other advice.5
Errors and Omissions
10. The duty to give honest and candid advice requires the lawyer to inform the client promptly of the facts, but
without admitting liability, upon discovering that an error or omission has occurred in a matter for which the
lawyer was engaged and that is or may be damaging to the client and cannot readily be rectified. When so informing
the client the lawyer should be careful not to prejudice any rights of indemnity that either of them may have under
any insurance, client's protection or indemnity plan, or otherwise. At the same time the lawyer should recommend
that the client obtain legal advice elsewhere about any rights the client may have arising from such error or omission
and whether it is appropriate for the lawyer to continue to act in the matter. The lawyer should also give prompt
notice of any potential claim to the lawyer's insurer and any other indemnitor so that any protection from that
source will not be prejudiced and, unless the client objects, should assist and co-operate with the insurer or
other indemnitor to the extent necessary to enable any claim that is made to be dealt with promptly. If the lawyer
is not so indemnified, or to the extent that the indemnity may not fully cover the claim, the lawyer should expeditiously
deal with any claim that may be made and must not, under any circumstances, take unfair advantage that might defeat
or impair the client's claim. In cases where liability is clear and the insurer or other indemnitor is prepared
to pay its portion of the claim, the lawyer is under a duty to arrange for payment of the balance.6
Compromise or Settlement
11. The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a
reasonable basis and should discourage the client from commencing or continuing useless legal proceedings.7
Dishonesty or Fraud by Client
12. When advising the client the lawyer must never knowingly assist in or encourage any dishonesty, fraud, crime,
or illegal conduct, or instruct the client on how to violate the law and avoid punishment. The lawyer should be
on guard against becoming the tool or dupe of an unscrupulous client or of persons associated with such a client.8
Test Cases
13. A bona fide test case is not necessarily precluded by the preceding paragraph and, so long as no injury to
the person or violence is involved, the lawyer may properly advise and represent a client who, in good faith and
on reasonable grounds, desires to challenge or test a law and this can most effectively be done by means of a technical
breach giving rise to a test case.9 In all such situations the lawyer should ensure that the client
appreciates the consequences of bringing a test case.
Threatening Criminal Proceedings
14. Apart altogether from the substantive law on the subject, it is improper for the lawyer to advise, threaten
or bring a criminal or quasi-criminal prosecution in order to secure some civil advantage for the client, or to
advise, seek or procure the withdrawal of a prosecution in consideration of the payment of money, or transfer of
property to, or for the benefit of the client.10
NOTES
1. Cf. CBA-COD 3; CBA 3(1); Que. 3.01.01; IBA A-10; Orkin at pp. 78-79.
2. The lawyer should not remain silent when it is plain that his client is rushing into an "unwise, not to
say disastrous adventure", per Lord Danckwerts in Neushal v. Mellish & Harkavy (1967) 111 Sol.
Jo. 399 (C.A.).
3. Cf. CBA 3(1) and Eaton, "Practising Ethics" (1966) 9 Can. B.J. 349.
4. For cases illustrating the extent to which a lawyer should investigate and verify facts and premises before
advising see, e.g., those collected in 43 E. & E.D. (Repl.) at pp. 97-115.
5. Summarized from Johnstone & Hopkins, Lawyers and Their Work (1967), Bobbs-Merrill, Indianapolis,
pp. 78-81. The lawyer's advice is usually largely based on the lawyer's conception of relevant legal doctrine and
its bearing on the particular factual situation at hand. Anticipated reactions of courts, probative value of evidence,
the desires and resources of clients, and alternative courses of action are likely to have been considered and
referred to. The lawyer may indicate a preference and argue persuasively, or pose available alternatives in neutral
terms. The lawyer makes the law and legal processes meaningful to clients; the lawyer explains legal doctrine and
practices and their implications; the lawyer interprets both doctrine and impact. Often legal and non-legal issues
are intertwined. Much turns on whether the client wants a servant, a critic, a sounding board, a neutral evaluator
of ideas, reassurance, authority to strengthen his hand .... The real problem may be one, not of role conflict,
but of role definition. The lawyer may spot problems of which the client is unaware and call them to his attention.
6. See Bastedo, "A Note on Lawyers' Malpractice" (1970) 7 Osg. Hall L.J. 311.
7. Cf. CBA 3(3) and Orkin at pp. 95-97. N.B. C-3: "The lawyer has a duty to discourage a client from
commencing useless litigation; but the lawyer is not the judge of his client's case and if there is a reasonable
prospect of success the lawyer is justified in proceeding to trial. To avoid needless expense it is the lawyer's
duty to investigate and evaluate the proofs or evidence upon which the client relies before the institution
of proceedings. Similarly, when possible the lawyer must encourage the client to compromise or settle the dispute."
"[The litigation process] operates to bring about a voluntary settlement of a large proportion of disputes
... This fact of voluntary settlement is an essential feature of the judicial system", Jackett, C.J.-F.C.C.,
The Federal Court of Canada, A Manual of Practise (1971) at pp. 41-42.
8. Cf. CBA 3(5) "... the great trust of the lawyer is to be performed within and not without the bounds of
the law." See also ABA DR 7-102(A).
Any complicity such as abetting, counselling or being an accessory to a crime or fraud is obviously precluded.
Cf. ABA ECs 7-3 and 7-5: "Where the bounds of law are uncertain ... the two roles [of advocate and adviser]
are essentially different. In asserting a position on behalf of his client, an advocate for the most part
deals with past conduct and must take the facts as he finds them. By contrast, a lawyer serving as
adviser primarily assists his client in determining the course of future conduct
and relationships .... A lawyer should never encourage or aid his client to commit criminal acts or counsel his
client on how to violate the law and avoid punishment ..." (Emphasis added).
"The arms which [the lawyer] wields are to be the arms of the warrior and not of the assassin. It is his duty
to accomplish the interests of his clients per fas, but not per nefas", per Cockburn, L.C.J.
in a speech in 1864 quoted as being derived from Quintilian in Rogers, "The Ethics of Advocacy" (1899)
15 L.Q.R. 259 at 270-71. Applied to a solicitor in a "very clear case where the solicitor has been guilty
of misconduct" and is "floundering in a quagmire of ignorance and moral obliquity" (he having, pending
trial of an action and in anticipation of an adverse outcome, advised his client to dispose of its property and,
after verdict, taking an assignment of part of that property). Centre Star v. Rossland Miners Union (1904-05)
11 B.C.R. 194 at 202-03 (B.C. Full Ct.).
9. For example, to challenge the jurisdiction for or the applicability of a shop-closing by-law or a licensing
measure, or to determine the rights of a class or group having some common interest.
10. See article, "Criminal Law May Not Be Used to Collect Civil Debts" (1968) Vol. 2, No. 4 Law Soc.
U.C. Gaz. 36; and cf. B.C. E-5; Alta 41; ABA DR 7-105(A).
(Amended: Chapter III, Special Term Convocation, December 3, 2001)
Return to Index
|
