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Code of Professional Conduct

CHAPTER IX

THE LAWYER AS ADVOCATE


RULE

When acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law.1

Commentary

Guiding Principles
1. The advocate's duty to the client "fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case" and to endeavour "to obtain for his client the benefit of any and every remedy and defence which is authorized by law"2 must always be discharged by fair and honourable means, without illegality and in a manner consistent with the lawyer's duty to treat the court with candour, fairness, courtesy and respect.3

Prohibited Conduct
2. The lawyer must not, for example:

(a) abuse the process of the tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party;4
(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable;5
(c) appear before a judicial officer when the lawyer, the lawyer's associates or the client have business or personal relationships with such officer that give rise to real or apparent pressure, influence or inducement affecting the impartiality of such officer;6
(d) attempt or allow anyone else to attempt, directly or indirectly, to influence the decision or actions of a tribunal or any of its officials by any means except open persuasion as an advocate;7
(e) knowingly attempt to deceive or participate in the deception of a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;8
(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument or the provisions of a statute or like authority;9
(g) knowingly assert something for which there is no reasonable basis in evidence, or the admissibility of which must first be established;10
(h) deliberately refrain from informing the tribunal of any pertinent adverse authority that the lawyer considers to be directly in point and that has not been mentioned by an opponent;11
(i) dissuade a material witness from giving evidence, or advise such a witness to be absent;12
(j) knowingly permit a witness to be presented in a false or misleading way or to impersonate another;
(k) needlessly abuse, hector or harass a witness;
(l) needlessly inconvenience a witness.


Errors and Omissions
3. The lawyer who has unknowingly done or failed to do something that, if done or omitted knowingly, would have been in breach of this Rule and discovers it, has a duty to the court, subject to the Rule relating to confidential information, to disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.13

Duty to Withdraw
4. If the client wishes to adopt a course that would involve a breach of this Rule, the lawyer must refuse and do everything reasonably possible to prevent it. If the client persists in such a course the lawyer should, subject to the Rule relating to withdrawal, withdraw or seek leave of the court to do so.14

The Lawyer as Witness
5. The lawyer who appears as an advocate should not submit the lawyer's own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer's partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as advocate in any appeal from the decision in those proceedings.15 There are no restrictions upon the advocate's right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.

Interviewing Witnesses
6. The lawyer may properly seek information from any potential witness (whether under subpoena or not) but should disclose the lawyer's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.16 The lawyer shall not approach or deal with an opposite party who is professionally represented save through or with the consent of that party's lawyer.17

Unmeritorious Proceedings
7. The lawyer should never waive or abandon the client's legal rights (for example an available defence under a statute of limitations) without the client's informed consent. In civil matters it is desirable that the lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute.18

Encouraging Settlements
8. Whenever the case can be settled fairly, the lawyer should advise and encourage the client to do so rather than commence or continue legal proceedings.19

Duties of Prosecutor
9. When engaged as a prosecutor, the lawyer's prime duty is not to seek a conviction, but to present before the trial court all available credible evidence relevant to the alleged crime in order that justice may be done through a fair trial upon the merits.20 The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to the accused or defence counsel (or to the court if the accused is not represented) of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would affect the punishment of the accused.21

Duties of Defence Counsel
10. When defending an accused person, the lawyer's duty is to protect the client as far as possible from being convicted except by a court of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence charged. Accordingly, and notwithstanding the lawyer's private opinion as to credibility or merits, the lawyer may properly rely upon all available evidence or defences including so-called technicalities not known to be false or fraudulent.22

11. Admissions made by the accused to the lawyer may impose strict limitations on the conduct of the defence and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, or to the form of the indictment, or to the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence, or call any evidence that, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done, or in fact had not done, the act. Such admissions will also impose a limit upon the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.23

Agreement on Guilty Plea
12. Where, following investigation,

(a) the defence lawyer bona fide concludes and advises the accused client that an acquittal of the offence charged is uncertain or unlikely,
(b) the client is prepared to admit the necessary factual and mental elements,
(c) the lawyer fully advises the client of the implications and possible consequences of a guilty plea and that the matter of sentence is solely in the discretion of the trial judge, and
(d) the client so instructs the lawyer, preferably in writing,

it is proper for the lawyer to discuss and agree tentatively with the prosecutor to enter a plea of guilty on behalf of the client to the offence charged or to a lesser or included offence or to another offence appropriate to the admissions, and also on a disposition or sentence to be proposed to the court. The public interest and the client's interests must not, however, be compromised by agreeing to a guilty plea.24

Undertakings
13. An undertaking given by the lawyer to the court or to another lawyer in the course of litigation or other adversary proceedings must be strictly and scrupulously carried out. Unless clearly qualified in writing, the lawyer's undertaking is a personal promise and responsibility.25

Courtesy
14. The lawyer should at all times be courteous and civil to the court and to those engaged on the other side. Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though unpunished as contempt, might well merit disciplinary action.26

Role in Adversary Proceedings
15. In adversary proceedings, the lawyer's function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (save as required by law or under paragraphs 2(h) or 7 above) to assist an adversary or advance matters derogatory to the client's case. When opposing interests are not represented, for example in ex parte or uncontested matters, or in other situations where the full proof and argument inherent in the adversary system cannot be obtained, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the court is not misled.27

Communicating with Witnesses
16. When in court the lawyer should observe local rules and practices concerning communication with a witness about the witness's evidence or any issue in the proceeding. Generally, it is considered improper for counsel who called a witness to communicate with that witness without leave of the court while such witness is under cross-examination.28

Agreements Guaranteeing Recovery
17. In civil proceedings the lawyer has a duty not to mislead the court about the position of the client in the adversary process. Thus, where a lawyer representing a client in litigation has made or is party to an agreement made before or during the trial whereby a plaintiff is guaranteed recovery by one or more parties notwithstanding the judgement of the court, the lawyer shall disclose full particulars of the agreement to the court and all other parties.29

Scope of the Rule
18. The principles of this Rule apply generally to the lawyer as advocate and therefore extend not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals and other bodies, regardless of their function or the informality of their procedures.30

NOTES


1. Cf. CBA-COD 8; CBA 2(1), 3(5); ABA-MR 3; ABA Canon 7.
"The concept that counsel is the mouth-piece of his client and that his speech is the speech of the client is as unfortunate as it is inaccurate. He is not the agent or delegate of his client. Within proper bounds, however, counsel must be fearless and independent in the defence of his client's rights .... He must be completely selfless in standing up courageously for his client's rights, and he should never expose himself to the reproach that he has sacrificed his client's interests on the altar of expediency ...", per Schroeder, J.A., "Some Ethical Problems in Criminal Law" in Law Soc. U.C. Special Lectures (1963) 87 at 102.

2. The sources of the quotations are (a) per Lord Reid in Rondel v. Worsley (1969), 1 A.C. 191 at 227 and (b) CBA 3(5).

3. Cf. CBA 3(5). "...[H]e must be a man of character. The Court must be able to rely on the advocate's word; his word must indeed be his bond .... The advocate has a duty to his client, a duty to the Court, and a duty to the State; but he has above all a duty to himself that he shall be, as far as it lies in his power, a man of integrity. No profession calls for higher standards of honour and uprightness, and no profession, perhaps offers greater temptations to forsake them...", from Hyde, Lord Birkett (1964, Hamish Hamilton, London) at p. 551. Courtesy and respect, as used herein, include the duty to be prompt and punctual.

4. Cf. IBA A-19; ABA DR 7-102 (A)-(1).

5. Cf. IBA A-15.

6. Cf. ABA Canon 9, DR 9-101; IBA E-3.

7. Cf. CBA 2(4), 5(5); Que. 2.03, 3.05; N.B. B-6; ABA 9 ECs 7-34 and 7-35, DR 7-110; IBA A-16.
In Toronto Transit v. Aqua Taxi (1955) O.W.N. 857 (Ont. H.C.), where a sealed letter improperly attempting to influence a decision had been delivered to a judge, the Court, while exonerating the lawyers concerned, make it clear that any involvement in such conduct would be most improper.

8. Where a lawyer joined in a scheme to mislead the Court by arranging proceedings to result in an apparent acquittal which could then be used to answer prior pending proceedings for the same offence (a justice, a constable and another lawyer being misled in the process), the Court said: "These facts establish a stupid, but nevertheless unworthy, attempt to pervert the course of justice, and most certainly constitute conduct unbecoming a barrister and solicitor in the pursuit of his profession.", Banks v. Hall (1941), 2 W.W.R. 534 (Sask. C.A.).
A lawyer counselling false evidence would be guilty of perjury if it were given (Criminal Code, ss. 22, 120), and of counselling if it were not (ibid., s. 422).
It is an offence to fabricate anything with intent that it be used as evidence by any means other than perjury or incitement to perjury (ibid., s. 125).
Similarly, it is an offence wilfully to attempt in any manner to obstruct, pervert or defeat the course of justice (ibid., s. 127).
"The swearing of an untrue affidavit ... is perhaps the most obvious example of conduct which a solicitor cannot knowingly permit .... He cannot properly, still less can he consistently with his duty to the Court, prepare and place a perjured affidavit upon file .... A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act ...". per Viscount Maugham in Myers v. Elman (1940), A.C. 282 at 293-94 (H.L.).
"[Counsel] had full knowledge of the impropriety of the paragraphs in the affidavit ... [and] is bound to accept responsibility for [them] .... If he knows that his client is making false statements under oath and does nothing to correct it, his silence indicates, at the very least, a gross neglect of duty.", per McLennan, J.A. in Re Ontario Crime Commission (1962), 37 D.L.R. (2d) 382 at 391 (Ont. C.A.).

9. Cf. N.B. B-1; IBA A-14; ABA DR 7-102(A)(5).

10. Cf. N.B. B-7; ABA EC 7-25; DR 7-106(C)(1).

11. Cf. CBA 1(1); N.B. B-3; IBA A-14; ABA EC 7-23, DR 7-106(B)(1).
See Glebe Sugar v. Greenock Trustees (1921), W.N. 85 (H.L.) for a strong statement by Lord Birkenhead on the duty of counsel to disclose to the court authorities bearing one way or the other: "The extreme impropriety of such a course [withholding a known pertinent authority] could not be made too plain." See also Plant v. Urquhart (1922) 1 W.W.R. 632 (B.C.-C.A.) per McPhillips, J. at 638-39.

12. Cf. IBA A-18; ABA DR 7-109(B).

13. Cf. N.B. B-8; ABA DRs 7-102(B) and 4-101(C)(2).

14. Cf. ABA DR 2-110(B)(2); N.B. B-8: "Upon learning of fraudulent testimony participated in by his client, counsel has a duty to withdraw from the case and to advise the court and the adverse party of the fraud." See also Orkin at p. 127.

15. Cf. CBA 2(3); N.B. C-11; ABA EC 7-24, DR 7-106(C)(3), (4).
"It is to be borne in mind that the function of counsel in any Court is that of an advocate; he is there to plead his client's cause upon the record before the Court and he does not in any sense occupy the dual position of advocate and witness.", per McGillivray, J.A. in Cairns v. Cairns (1931), 3 W.W.R. 335 at 345 (Alta. App. Div.).
"It is improper, in my opinion, for Counsel for the Crown to express his opinion as to the guilt or innocence of the accused. In the article to which I have referred it is said that it is because of the character or eminence of a counsel is to be wholly disregarded in determining the justice or otherwise of his client's cause that it is an inflexible rule of forensic pleading that an advocate shall not, as such, express his personal opinion of or his belief in his client's cause.", per Locke, J. in Boucher v. The Queen (1955), S.C.R. 16 at 26.

As to the impropriety of a lawyer witness later appearing as counsel, see Imperial Oil v. Grabarchuk (1974), 3 O.R. (3d) 783 (Ont. C.A.); Phoenix v. Metcalfe (1974), 5 W.W.R. 661 (B.C.C.A.).

16. Cf. B.C. D-1(b); N.B. B-8; IBA A-18; ABA DR 7-109(A), (B), (C). "I do not know of any rule that a defence counsel cannot interview a witness that may be called for the Crown .... The Crown, by issuing a lot of subpoenas, cannot throw a cloud over a lot of witnesses, excluding the defence from the preparation of their case.", per Roach, J.A. in R. v. Gibbons (1946), 86 C.C.C. 20 at 28-29 (Ont. C.A.).

17. Cf. B.C. D-1(b); N.B. D-7, D-8; ABA EC 7-19, DR 7-104(A)(1).
B.C. D-1(b) discusses situations where it is difficult to tell whether one is dealing with a witness (which is proper) or communicating with an opposite party who is legally represented (which is improper). The problem may arise where the opposite party is a corporation or government agency. The test suggested is: "Is he likely to be involved in the decision-making process of the party, or does he merely carry out the directions of others?"
"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'-.... To notify the lawyer that the matter is settled is not to negotiate through him". per Tritschler, J.A. in Nelson v. Murphy (1957), 22 W.W.R. 137 at 142 (Man. C.A.).

18. Cf. CBA 4(4); N.B. D-4; ABA ECs 7-38, 7-39, DR 7-106(C)(5). See Orkin at pp. 60-63 for instances of dilatory tactics held to be improper.

19. Cf. CBA 3(3); Orkin at pp. 95-97; and see paragraph 5 of the Rule relating to advising clients.

20. But see para. 10, post.

21. Cf. CBA 1(2); N.B. C-12; ABA ECs 7-13, 7-14, DR 7-103; 0rkin. at pp. 116-20.

"It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.", per Rand, J. in Boucher v. The Queen (1955), S.C.R. 16 at 23-24.
See also Richard v. The Queen (1960), 126 C.C.C. 255 per Bridges, J.A. at p. 280; Regina v. Lalonde (1972), 5 C.C.C. (2d) 168; and Martin, "Preparation for Trial", Law Soc. U.C. Special Lectures (1969) p. 221 at 234 et seq.

22. Cf. CBA 2(6); N.B. C-6; IBA B-5; ABA EC 7-24, DR 7-106(C)(4).

23. See Orkin, p. 115 and Boulton, Conduct and Etiquette at the Bar, pp. 71-73, reproducing the substance of 1912 Annual Statement of the General Council of the Bar; also quoted and commented on by Schroeder, J.A., supra, note 1, at pp. 94-97.

See also Martin, "The Role and Responsibility of the Defence Advocate" (1969-70) 12 Crim. L.Q. 376 at 386-87.

24. See guidelines laid down in R. v. Turner (1970), 2 All E.R. 281 at 285 (C.A.); panel discussion in Law Soc. U.C. Special Lectures (1969) at pp. 299-311; Ratushny, "Plea Bargaining and the Public" (1972) 20 Chitty's L.J. 238.

25. Cf. CBA 4(3); IBA A-21, A-23; ABA EC 7-38, DR 7-106(C)(5);
N.B. D-5: "Undertakings should be written and the terms should be unambiguous. Counsel when giving an undertaking accepts personal responsibility unless expressly excepted.
"It has more than once been determined by the Court that if attorneys choose to practice upon loose understandings ... they cannot expect aid from the Court if difficulties arise in carrying them out ....", per Barry, J. in Ferguson v. Swedish-Canadian (1912), 41 N.B.R. 217 at 220 (N.B.C.A.).
Where solicitors wrote: "on behalf of our client ... we undertake ..." it was held that, in the circumstances, the solicitors were personally responsible: Re Solicitors (1971), 1 W.W.R. 529 (B.C.C.A.).
"... [O]ne's word should be one's bond ....", Lund, 1950 Lecture to the Law Society (Law Society of Upper Canada, 1956, pp. 33-34).

26. Cf. CBA 2(1); N.B. B-3, D-4; IBA C-1; ABA EC 7-36, DR 7-106(C)-(6).

27. Cf. N.B. C-8; IBA A-20; ABA EC 7-19.

28. Commentary 15 to Rule 10 of the Rules of Professional Conduct of the Law Society of Upper Canada provides as follows:
"15. The lawyer should observe the following guidelines respecting communication with witnesses giving evidence:

(a) During examination-in-chief: it is not improper for the examining lawyer to discuss with the witness any matter that has not been covered in the examination up to that point;
(b) during examination-in-chief by another lawyer of a witness who is unsympathetic to the law-yer's cause: the lawyer not conducting the examination-in-chief may properly discuss the evidence with the witness;
(c) between completion of examination-in-chief and commencement of cross-examination of the lawyer's own witness: there ought to be no discussion of the evidence given in chief or relating to any matter introduced or touched upon during the examination-in-chief;
(d) during cross-examination by an opposing lawyer: while the witness is under cross-examination the lawyer ought not to have any conversation with the witness respecting the witness's evidence or relative to any issue in the proceeding;
(e) between completion of cross-examination and commencement of re-examination: the lawyer who is going to re-examine the witness ought not to have any discussion respecting evidence that will be dealt with on re-examination;
(f) during cross-examination by the lawyer of a witness unsympathetic to the cross-examiner's cause: the lawyer may properly discuss the wit-ness's evidence with the witness;
(g) during cross-examination by the lawyer of a witness who is sympathetic to that law-yer's cause: any conversations ought to be restricted in the same way as communications during examination-in-chief of one's own witness;
(h) during re-examination of a witness called by an opposing lawyer: if the witness is sympathetic to the lawyer's cause there ought to be no communication relating to the evidence to be given by that witness during re-examination. The lawyer may, however, properly discuss the evidence with a witness who is adverse in interest.

If there is any question whether the lawyer's behaviour may be in violation of a rule of conduct or professional etiquette, it will often be appropriate to obtain the consent of the opposing lawyer and leave of the court before engaging in conversations that may be considered improper or a breach of etiquette."

However, "It is submitted with respect that in some respects [this commentary] may inhibit the discovery of truth and go beyond what was the practice in High Court", per Sopinka and Polin, The Trial of an Action, p. 106.
In Nova Scotia the rule has long existed that it is improper for counsel to communicate with a witness called in chief during a break or adjournment until the witness's cross-examination has concluded.

29. See J. & M. Chartrand Realty Ltd. v. Martin (1981), 22 C.P.C. 186 (Ont. H.C.J.).

30. Cf. ABA EC 7-15.

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