Chapter 1

Regulating the legal professions

1. The Law Society of Ontario problems with competence, which include both spot
The Law Society of Ontario (formerly known as the Law audits and practice reviews.
Society of Upper Canada) was established in 1797 as a self- 1.3 Professional regulation
governing body. The mandate of the Law Society is to
govern Ontario’s legal professions in the “public interest.” The Professional Regulation Division fulfills the Law
Individuals who have met the required standards relating Society’s obligation to govern lawyers and paralegals in
to competence and good character are permitted to be the public interest by responding to regulatory complaints
licensed to practise law (lawyers only) or provide legal and allegations. It works with other divisions of the Law
services (both lawyers and paralegals). Society to respond to regulatory issues, develop policies to
limit risk to the public, and improve access to justice. The
To support its mandate, the Law Society’s primary primary activities of the Professional Regulation Division
functions can be sorted into four main areas: include complaints handling, investigations, discipline
(1) convocation and management; (2) education, prosecutions, and monitoring and enforcement of orders
licensing, and professional development; (3) professional and undertakings. The Professional Regulation Division
regulation; and (4) resources and supports for lawyers, also provides trustee services and operates the Unclaimed
paralegals, and the public. Trust Fund and Compensation Fund.
1.1 Convocation and management 1.4 Support to lawyers, paralegals, and the
As a self-governing body, the Law Society is run by a board public
of directors (called “benchers”). Most benchers are elected The Client Service Centre (CSC) is the face and voice of the
by lawyers and paralegals of the Law Society, and some are Law Society. The CSC is made up of the Call Centre, which
appointed by the Lieutenant Governor in Council. is the intake point for most inquiries the Law Society
Benchers meet most months in a gathering called receives, and the administrative areas that handle licensee
“Convocation” to deal with matters related to governing fees and annual filings, as well as any incoming
the legal professions. Benchers may be lawyers, complaints.
paralegals, or members of the public. Benchers also
The External Relations and Communications (ERC)
participate in Law Society committees and on panels as
Division leads the Law Society’s communications,
adjudicators to hear discipline cases concerning the
engagement, and public affairs activities. Among other
conduct, licensing, capacity, and competence of licensees.
things, ERC produces informative publications and deals
The head of the Law Society, the “Treasurer,” presides with media inquiries.
over Convocation and is elected by benchers entitled to
vote in Convocation. The Chief Executive Officer, an 2. Regulating the legal professions in the
public interest
employee of the Law Society, oversees the staff and the
daily operations of the organization. A profession requires extensive training and the study and
mastery of specialized knowledge. Recognized professions
1.2 Education, licensing, and professional
are regulated by a governing body that oversees licensing,
development
outlines ethical conduct, and holds the profession to its
The Professional Development and Competence Division established standards.
(PD&C) of the Law Society provides education, practice
Practising law or providing legal services to the public is a
resources, and supports to lawyers and paralegals. To
privilege and a responsibility. Lawyers are required to
further the Law Society’s mandate, PD&C’s goal is to
comply with the code of ethical behaviour set out by the
ensure that competent legal professionals serve the public.
Rules of Professional Conduct (Rules). Those who fail to
PD&C is responsible for the licensing process, continuing
meet their responsibilities may be subject to the Law
professional development (CPD), and the provision of
Society’s complaints, investigation, and enforcement
practice supports and resources to lawyers and paralegals
process, where the question of whether they should
via the Great Library, the Practice Management Helpline,
maintain the privilege to practise law or provide legal
and the Coach and Advisor Network. PD&C also oversees
services may be reviewed.
remedial programs aimed at identifying and correcting

1
CHAPTER 1 PROFESSIONAL RESPONSIBILITY

2.1 Terminology and discharge their responsibilities, as well as the

standards that they must uphold.
For the purposes of the Professional Responsibility
chapters of these Study Materials, unless otherwise noted, ƒ Chapter 3: Relationship to Clients discusses
issues relating to the lawyer-client relationship.
ƒ “lawyer” refers to a person licensed by the Law These include competence, quality of service,
Society to practise law as a barrister or solicitor or confidentiality, conflicts of interest, withdrawal
provide legal services in Ontario and includes a from representation, and preservation of client
candidate enrolled in the Law Society’s licensing property. It also covers fees and billing issues and
process for lawyers; contains rules on fee splitting and referral fees.
ƒ “legal practitioner” refers to a lawyer or paralegal ƒ Chapter 4: The Practice of Law covers the
licensed by the Law Society or a lawyer from offering, marketing, and advertising of the practice
another Canadian jurisdiction who is authorized to of law and provision of legal services.
practise law as a barrister or solicitor in that other ƒ Chapter 5: Relationship to the
jurisdiction; Administration of Justice outlines how lawyers
ƒ “legal professions” refers to the occupations of should conduct themselves when acting as
practising law as a lawyer and of providing legal advocates and includes the lawyer’s duties when
services as a lawyer or paralegal; acting as a witness, interviewing witnesses,
communicating with witnesses giving testimony,
ƒ “licensee” refers to a lawyer or paralegal licensed by
interacting with jurors, and acting as a mediator.
the Law Society;
ƒ “paralegal” refers to a person licensed by the Law ƒ Chapter 6: Relationship to Students,
Society to provide legal services in Ontario; and Employees, and Others outlines the lawyer’s
responsibilities regarding the supervision of non-
ƒ “tribunal” includes courts, boards, arbitrators, lawyer employees and articling students. It also
mediators, administrative agencies, and bodies that includes prohibitions on a lawyer engaging in sexual
resolve disputes, regardless of their function or the harassment or discrimination and a lawyer’s special
informality of their procedures. responsibility to respect the requirements of human
Certain instructions outlined in these Study Materials are rights laws in force in Ontario.
mandatory and others are not. The terms “shall” or “must” ƒ Chapter 7: Relationship to the Law Society
are used in those instances where compliance is mandated and Other Lawyers outlines how lawyers must
treat others. It includes the lawyer’s obligations
by the by-laws made under the Law Society Act (Act) or
when engaging in outside interests, making public
the Rules. The term “should” and the phrase “should appearances or statements, or holding public office
consider” indicate a recommendation. These terms refer and also addresses undertakings and trust
to those practices or policies that are considered by the conditions. Chapter 7 discusses the lawyer’s duty to
Law Society to be a reasonable goal for maintaining or prevent unauthorized practice; to respond to the
enhancing practice management or client service. The Law Society; and to report misconduct, criminal
term “may” and the phrase “may consider” convey charges, or convictions. It also covers the
obligations of the suspended lawyer and outlines the
discretion. Lawyers may or may not pursue these
Law Society’s disciplinary authority.
suggested policies or practices depending upon their
particular circumstances, areas of practice, or clientele. The Rules cannot cover every situation; they should be
interpreted and applied with common sense and in a
2.2 The Rules of Professional Conduct manner consistent with the public interest and the
Under the Act, the Law Society has the right to make rules, integrity of the legal professions. There may be
circumstances where a lawyer’s personal sense of what is
regulations, and by-laws to govern the professional
conduct of Ontario’s lawyers and paralegals. Through right may conflict with what is outlined in the Rules;
their benchers, Ontario lawyers and paralegals determine however, a lawyer is obligated to comply with the Rules
what conduct is required, permitted, or prohibited. The regardless of whether the lawyer agrees with them. When
Act also gives the Law Society the ability to discipline faced with an ethical problem or question to be resolved,
those who do not adhere to that conduct. The Rules and the Law Society recommends the lawyer consider the
following steps:
the by-laws made under the Act were adopted to govern
the professional conduct of Ontario lawyers. (1) Identify the professional responsibility issue(s).
The Rules are divided into seven chapters: (2) Review and apply the applicable rules, case law,
legislation, or secondary sources.
ƒ Chapter 1: Citation and Interpretation defines
(3) List the possible options and assess the risks and
key terms used in the Rules.
benefits based on applicable rules, case law,
ƒ Chapter 2: Integrity addresses the way in which legislation, or secondary sources.
lawyers should practise law or provide legal services

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REGULATING THE LEGAL PROFESSIONS CHAPTER 1

(4) Seek guidance and support from, for example, the complaint. Serious allegations of professional misconduct,
Law Society’s Practice Management Helpline, Coach incapacity, or incompetence that are likely to result in
and Advisor Network, or LAWPRO® resources. discipline against the lawyer or paralegal are referred to
(5) Document the decision-making process and course Investigation Services for investigation.
of action.
Investigation Services may close the matter, with or
The Rules were created to ensure a high standard of
without remedial action, refer the matter to the
conduct for the protection and benefit of the public
Proceedings Authorization Committee (PAC) to consider
interest. Failure to comply with the Rules may prejudice a
whether further action is warranted, or transfer the file to
client’s rights, discredit the legal professions, and result in
the Litigation Services Department. The PAC is made up
discipline by the Law Society.
of benchers who may approve or give directions for the
2.3 Competence and professional informal remediation of the matter or may authorize a
development hearing before a hearing panel, which is similar to but less
formal than a court proceeding.
The Law Society has developed various initiatives to assist
lawyers and paralegals in maintaining the competence The hearing panel may discipline lawyers or paralegals by
required to serve the public. CPD programs and materials suspending or revoking their licence or ordering them to
are offered in various formats and provide lawyers and ƒ participate in CPD or professional training;
paralegals with information on the law, the Law Society’s
ƒ cooperate in a practice review;
rules and by-laws, and practice-management best
practices and techniques. The Practice Management ƒ restrict their practice to certain areas;
Helpline, a confidential telephone service, supports ƒ practise law or provide legal services only under the
lawyers and paralegals with understanding and properly supervision of another lawyer or paralegal, as the
applying Law Society rules and by-laws and provides case may be;
practice-management guidance. ƒ not maintain a trust account;
The Coach and Advisor Network provides lawyers and ƒ pay a fine;
paralegals with access to shorter-term, outcome-oriented ƒ refund to a client all or a portion of fees; and/or
relationships with coaches and advisors drawn from the ƒ start or continue treatment or counselling.
legal professions. Coaches support the implementation of
Lawyers and paralegals may appeal any decision of the
best practices, and advisors assist with substantive and
hearing panel to an appeal panel and may appeal the
procedural law inquiries on client files.
decision of an appeal panel to the Divisional Court.
To monitor the competence of lawyers and paralegals, the Hearing panels are also involved in “good character”
Law Society’s Practice Audits Department administers the hearings for lawyer and paralegal candidates enrolled in
Spot Audit and Practice Review programs, both of which the Law Society’s licensing process.
are remedial in nature. Spot audits are conducted on
If the Law Society receives a complaint against a lawyer,
lawyer firms and assess the firms’ compliance with the
that lawyer will be notified and given an opportunity to
financial-filing and record-keeping requirements outlined
respond. Failure to respond promptly and completely to
in By-Laws 8 and 9, made under the Act. Auditors can
any communication from the Law Society is a breach of
provide guidance on best practices for organizing and
the Rules and is also grounds for discipline. Lawyers
maintaining required records. Practice reviews assess a
should communicate and cooperate fully with any
licensee’s practice-management processes, including file
representative of the Law Society who contacts them
management, professional management, and financial
regarding a complaint so that the issue can be resolved as
management, in order to support efficiency, effectiveness,
quickly as possible. Most complaints are resolved without
and competence.
a formal discipline hearing. If the lawyer is disciplined, the
2.4 Complaints, investigations, discipline, hearing panel’s decision will become part of the lawyer’s
and appeals record with the Law Society and will be made public.
Complaints about a lawyer or paralegal must be sent to the 2.5 Suspensions — disciplinary and
Law Society in writing and are first reviewed by the CSC’s administrative
Complaints & Compliance Department to ensure that the
When a lawyer or paralegal has acted contrary to the Law
issues outlined are within the Law Society’s jurisdiction. If
Society’s legislation, rules, regulations, or by-laws, the
a complaint falls within the Law Society’s jurisdiction and
Law Society may discipline that individual. Such
deals with an issue that can be resolved informally, the
discipline may include
Intake and Resolution Department will deal with the

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CHAPTER 1 PROFESSIONAL RESPONSIBILITY

ƒ delivering an oral or written reprimand; ƒ file annual reports to the Law Society, such as the
ƒ imposing a fine; Annual Report Filing; and

ƒ placing temporary or permanent restrictions on the ƒ report in the Annual Report Filing on each mixed
individual’s licence (e.g., via an undertaking); trust account, including interest earned, held at any
time during the licensee’s reporting year.
ƒ suspending the individual’s licence;
The specifics of these requirements are contained in By-
ƒ permitting the individual to give up the individual’s
Laws 5–6.1 and 8, made under the Act.
licence; and
ƒ revoking the individual’s licence. Unlike disciplinary suspensions, administrative
suspensions are automatically lifted as soon as the
Lawyers and paralegals suspended for failing to meet the
suspended licensees meet their administrative obligations
required standard of conduct have been suspended for
to the Law Society. However, licensees who have been
disciplinary reasons. When a lawyer or paralegal is
administratively suspended for a period of more than
suspended as a result of discipline, the suspension may be
12 months may have their licence revoked. Once revoked,
for a defined period of time, or it may be indefinite and
licensees must apply to have their licence reinstated and
dependent on the lawyer’s or paralegal’s completion of
may be required to pay an additional fee.
other tasks required by the Law Society’s hearing panel.
Lawyers and paralegals may also be suspended by the Law While under suspension for any reason, lawyers are
Society for administrative reasons. Administrative prohibited from practising law, providing legal services, or
suspensions are automatic, and there is no hearing. They representing or holding themselves out as persons entitled
occur if lawyers or paralegals fail to meet their to practise law or provide legal services. Suspended
administrative obligations to the Law Society, including lawyers also have specific obligations to disclose their
the requirements to suspended status to prospective, existing, and former
clients and to engage another lawyer to complete certain
ƒ pay annual fees to the Law Society (unless an
exception applies); tasks related to any existing client’s file. There are
additional obligations if the lawyer is holding client funds
ƒ pay the necessary professional liability insurance
or property in trust. These obligations are outlined in By-
premiums and levies or file the necessary forms
with the professional liability carrier; Laws 7.1 and 9, made under the Act.
ƒ complete and report on annual CPD hours;

4 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

 Chapter 2
Professionalism

1. Standards of the legal professions providing legal services. These persons include clients,
Though a lack of professionalism is easily recognized, it is other parties, lawyers, paralegals, support staff, tribunal
often unclear what is required to be “professional.” The officers, other employees of the judicial system, and
professional lawyer practises law and provides legal representatives of the Law Society of Ontario. This
services effectively with a positive attitude and approach obligation applies when appearing before any court,
to the work required. That lawyer takes responsibility for tribunal, adjudicator, or others who resolve disputes,
the lawyer’s actions, behaves appropriately in all regardless of their function or the informality of their
situations, and is a role model for colleagues. Under the procedures. A consistent pattern of rude, provocative, or
Rules of Professional Conduct (Rules), lawyers have a disruptive conduct by a lawyer or the use of personally
duty to uphold the standards and reputation of the legal abusive tactics that interfere with the administration of
professions and to assist in the advancement of their goals, justice may constitute professional misconduct, even if it
organizations, and institutions. To fulfill this duty, lawyers is not considered contempt of court. This is because a
must act with integrity, civility, courtesy, and good faith lawyer who is ill-mannered or acts in bad faith reflects
and are encouraged to participate in community activities poorly on the legal professions, does a disservice to the
that enhance the profession. Lawyers must also recognize client, and may impair the lawyer’s ability to competently
the diversity of the community in Ontario, protect the perform the tasks required in the client’s matter.
dignity of individuals, and respect human right’s laws in 4. Advancement of the legal professions —
force in Ontario. They must exercise the skills of cultural r. 2.1-2 and commentary
competence and incorporate the principles of equality,
There are a variety of activities in which lawyers can
diversity, and inclusion so that all clients receive equally
participate to fulfill their duty to uphold and enhance the
effective and respectful service and treatment and their
standards and reputation of the legal professions. Lawyers
employees enjoy equitable and inclusive workplaces.
are encouraged to share knowledge and experience with
These elements of professionalism are outlined further
colleagues and students informally in day-to-day practice
below.
or, more formally, by contributing to publications,
2. Integrity — r. 2.1-1 and commentary speaking at legal education seminars, or lecturing at
educational institutions. Lawyers may consider
Lawyers have a duty to practise law, provide legal services,
participating in legal aid or community legal service
and fulfill their professional responsibilities with honour
programs or providing legal services on a pro bono basis.
and integrity. If a lawyer lacks integrity or where a client
Lawyers may also consider holding elected or volunteer
doubts the trustworthiness of a lawyer, the client cannot
positions with the Law Society; local, provincial, national,
fully benefit from the lawyer-client relationship regardless
or international associations; or non-profit or charitable
of how competent the lawyer may be. Lawyers who
organizations. When participating in such community
conduct themselves without honour and integrity in their
activities, lawyers should be mindful of the possible
private lives or professional practices adversely impact the
perception that a lawyer is providing legal advice and
integrity of the professions and the administration of
creating a lawyer-client relationship.
justice. Because a lawyer’s failure to act with integrity may
undermine public confidence in the legal professions and 5. Lawyers and Ontario human rights laws
the justice system, lawyers must serve the public in a — r. 2.1-1 and commentary and ss. 6.3–
manner that inspires confidence, respect, and trust. A 6.3.1
lawyer must act with integrity when dealing with all Given the role the legal professions fulfill in the
others. Even the appearance of impropriety should be administration of justice, lawyers have a special
avoided. responsibility to recognize the diversity of the public they
3. Courtesy, civility, and good faith — serve. Lawyers must protect the dignity of individuals and
rr. 5.1-5 and 7.2-1 and commentary must comply with the human rights laws in force in
Ontario. The Ontario Human Rights Code (Code) gives
Further to the duty to act with integrity, lawyers must be
every person a right to equal treatment without
courteous and civil and act in good faith with all persons
discrimination on various grounds relating to matters
with whom they may interact while practising law or

5
CHAPTER 2 PROFESSIONAL RESPONSIBILITY

such as employment; contracts; housing; goods, services, 5.1 Discrimination — s. 6.3.1 and
or facilities; and membership in unions or trade or commentaries
professional associations. The purpose of the Code is to Lawyers must not discriminate against clients, other
prevent discrimination and harassment on the grounds of licensees, or any other person in the course of providing
ƒ race, colour, or creed (includes religion); legal services or employment. “Discrimination” is
differential treatment based on any of the grounds
ƒ citizenship, ancestry, place of origin, or ethnic
origin; prohibited by the Code, such as race, gender, creed, sexual
orientation, etc., that creates a disadvantage. It is the
ƒ sex (including pregnancy and breastfeeding);
impact of the behaviour and not the intention behind it
ƒ sexual orientation; that determines whether the behaviour is discriminatory.
ƒ gender identity or gender expression;
Discrimination arises in three different ways:
ƒ age;
ƒ Direct discrimination is discrimination that makes
ƒ record of offences (in the context of employment); an explicit distinction in treatment that
ƒ marital status (including single status) or family disadvantages a group protected by the Code.
status; ƒ Indirect or adverse-impact discrimination describes
ƒ receipt of public assistance (in the context of situations in which all individuals are treated the
housing); and same (i.e., by the application of a seemingly neutral
ƒ disability (physical and mental). rule or policy) but such treatment results in a
disadvantage to a group protected by the Code. In
Discrimination may be based on one or more prohibited such cases, there is a duty on the lawyer to
grounds. accommodate members of the affected group up to
the point of undue hardship.
Individuals have the right to be free from discrimination
ƒ Systemic discrimination is discrimination that
or harassment when they receive services, such as legal
becomes institutionalized in social structures,
services. Lawyers must ensure that no one is denied systems, practices, and policies because of power
service or receives inferior service due to discrimination. imbalances in society and that benefits dominant
Lawyers shall not engage in the harassment or groups and disadvantages others.
discrimination of any person including a colleague, staff
5.2 Harassment — s. 6.3 and commentary,
member, or client.
r. 6.3.1-1
Lawyers who are employers must also ensure that their
While providing legal services or employment, lawyers
employment practices and workplace conduct adhere to
must not harass a colleague, staff member, client, licensee,
the Code. Lawyers’ obligations regarding harassment and
or any other person based on a prohibited ground.
discrimination are outlined in the Rules and the Code.
Lawyers are also prohibited from engaging in sexual
Lawyers should review and become familiar with both to
harassment. “Harassment” is defined in the Code as
ensure they are meeting their ethical and legal obligations.
engaging in a course of vexatious comment or conduct that
At the same time, lawyers in their roles as employees and is known or ought reasonably to be known to be
members of the legal professions have a right to equal unwelcome. This could include, for example, repeatedly
treatment without discrimination and harassment under subjecting a client or colleague to jokes related to race or
the Code. creed. As a “course of conduct,” harassment is generally a
pattern of behaviour where more than one incident has
As a result of recent surveys, the Law Society has found
occurred. However, even one incident may constitute
that discrimination and harassment in legal workplaces
harassment in some cases. Sexual harassment is defined
still exist. The Challenges Faced by Racialized Licensees
in the Rules as an incident or series of incidents involving
Working Group found that law students, articling
unwelcome sexual advances, requests for sexual favours,
students, and lawyers from equity-seeking groups face
or other verbal or physical conduct of a sexual nature
widespread discrimination at all stages of their education
when
and careers (see “Working Together for Change: Strategies
to Address Issues of Systemic Racism in the Legal ƒ such conduct might reasonably be expected to cause
Professions,” below). As well, a 2018 survey revealed that insecurity, discomfort, offence, or humiliation to the
recipient(s) of the conduct;
21% of responding articling students reported
experiencing discrimination and/or harassment in their ƒ submission to such conduct is implicitly or explicitly
jobs. a condition for the provision of professional services
by the lawyer;

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PROFESSIONALISM CHAPTER 2

ƒ submission to such conduct is implicitly or explicitly ƒ Prepare workplace violence and harassment
a condition of employment by the lawyer; policies. Lawyers who employ six or more workers
ƒ submission to or rejection of such conduct affects must have written policies and post them in a
the lawyer’s employment decisions regarding the conspicuous place in the workplace.
employee (which may include the assignment of file ƒ Review these policies as often as necessary, but at
work to the employee, matters of promotion, raises least annually.
in salary, job security, and employee benefits, ƒ Assess the risks of workplace violence that may arise
among other things); from the nature of the workplace and the type or
ƒ such conduct has the purpose or the effect of conditions of work.
interfering with a person’s work performance; or ƒ Develop and maintain a program to implement the
ƒ such conduct creates an intimidating, hostile, or policies with respect to workplace violence and
offensive work environment. workplace harassment. The required contents of
such programs are set out in the OHSA and
Examples of behaviour considered to be sexual
summarized in the Rules.
harassment include, but are not limited to,
Lawyers should review and familiarize themselves with
ƒ sexist jokes that cause embarrassment or offence or these and other requirements found in the OHSA to
that are clearly embarrassing or offensive in nature;
ensure that their employment practices align with their
ƒ leering; legal and professional obligations.
ƒ displays of sexually offensive material;
6. Cultural competence
ƒ use of sexually degrading words to describe a
person; The practice of law and the provision of legal services
ƒ use of derogatory or degrading remarks directed at occur in a social context where systemic discrimination
members of one sex or sexual orientation; and inequality negatively affect many people and
ƒ use of sexually suggestive or obscene comments or communities. But public confidence in the administration
gestures; of justice requires that the administration of justice
ƒ unwelcome inquiries or comments about one’s sex operate and be seen to operate fairly and in the public
life; interest.
ƒ unwelcome sexual flirtations, advances, or Law and legal systems are social structures that contribute
propositions; to privileging the values and cultural practices of the
ƒ persistent unwanted contact or attention after the dominant groups in society. This social context lies in
end of a consensual relationship; tension with lawyers’ professional obligations to protect
ƒ requests for sexual favours; the public interest, ensure access to justice, and meet their
“special responsibility to recognize the diversity of the
ƒ unwanted touching;
Ontario community, to protect the dignity of individuals,
ƒ verbal abuse or threats; and
and to respect human rights laws in force in Ontario.”
ƒ sexual assault. Cultural competence is the learned skill that bridges this
tension.
5.3 Employment practices — r. 6.3.1-3 and
commentary 6.1 Cultural competence defined
Lawyers must ensure that their employment practices Cultural competence is the capacity to communicate and
meet the professional standards discussed above and interact effectively, respectfully, and comfortably with
respect the requirements of human rights laws and related people of differing cultures. Cultural competence is
equity legislation in Ontario. The commentary to r. 6.3.1­ required to communicate effectively across many social
3 provides additional guidance to lawyers about these differences including, but not limited to, experiences of
requirements in the employment context. indigeneity, race, colour, gender, gender identity, gender
Lawyers who employ one or more workers or who contract expression, religion, marital status, family status, sexual
for the services of one or more workers are also required orientation, physical and mental ability, citizenship, class,
to comply with the workplace violence and harassment and education as well as the intersections between these
provisions of the Occupational Health and Safety Act experiences. Accordingly, cultural competence enables a
(OHSA). lawyer to communicate effectively and accurately with a
client to establish and maintain the foundation of trust
Lawyers who are subject to the OHSA must take the and respect on which their fiduciary relationship depends.
following steps to prevent and address issues of violence
and harassment in their workplaces:

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CHAPTER 2 PROFESSIONAL RESPONSIBILITY

Each person’s experience of the person’s culture shapes (3) identify similarities with and differences from
the person’s values, ways of organizing and understanding others;
information, and norms of social behaviour. For a lawyer, (4) recognize a client’s position within a culture;
this is significant because it shapes how a lawyer assesses (5) recognize how power privileges certain
credibility, organizes facts, and makes judgments about
— values (e.g., individualism, acquisition of
what a client or witness may say, do, or seek. The following wealth, and compensation through monetary
are some examples of how a lawyer’s cultural baselines for damages);
interpreting the world may affect the lawyer-client
— ways of knowing (e.g., written rather than oral
relationship: history);
ƒ A lawyer from a dominant social group may be — social and institutional practices (e.g., nuclear
accustomed to respectful treatment by people with families over extended, multi-generational
relative power in particular contexts such as police, families);
educators, health providers, business owners, and
— relationships; and
government officials. Where a client is from a
community with experiences of systemic — human experiences;
discrimination that cause the client to distrust those (6) respect human rights; and
same authorities, the lawyer may misinterpret,
misunderstand, or negatively judge the client’s (7) adapt one’s practices to provide accessible and
conduct because it differs from what the lawyer inclusive legal services and workplaces.
would do in the circumstances. As part of lawyers’ core competence, cultural competence
ƒ A lawyer from a dominant social group who has not enables lawyers to conduct their practice in compliance
experienced systemic workplace discrimination or with their duties under the Rules, including those falling
harassment based on sex or race may misinterpret, under
misunderstand, or negatively judge a client’s
decision not to report experiences of discrimination ƒ integrity (r. 2.1-1, commentary [4.1]);
until after the client’s employment has ended or the ƒ courtesy and civility (rr. 5.1-5 and 7.2-1);
client has left the workplace.
ƒ discrimination and harassment (ss. 6.3–6.3.1);
ƒ A lawyer from an economically comfortable
background may misinterpret, misunderstand, or ƒ competence and quality of service (ss. 3.1 and 3.2);
negatively judge a situation where a client misses a and
meeting without notice, not appreciating that the ƒ marketing of professional services (r. 4.2-1,
absence may be due to the client’s lack of money for commentaries [6]–[7]).
public transit or lack of access to a phone or
computer by which to provide notice of the absence. Each of these is covered in more detail in other sections of
these Study Materials.
ƒ A lawyer who is cisgender (whose gender identity is
consistent with the sex assigned at birth) who has 6.3 Cultural competence and the lawyer-
never had to explain the lawyer’s own gender client relationship
identity or gender expression may misunderstand,
negatively judge, or alienate a client or create Developing cultural competence allows a lawyer to
barriers to trust by using gendered language or by identify and understand power, privilege, unconscious
failing to provide all-gender restroom facilities at bias (or implicit bias), microaggressions, and cultural
the lawyer’s office.
homophily so that they do not interfere with the lawyer-
In each case, cultural competency requires that lawyers client relationship or advocacy:
understand what assumptions they bring to the lawyer-
ƒ “Power” in this context refers to the fact that certain
client relationship and to their practice that may create
groups in society are socially, politically,
barriers to accurate understanding and appropriate economically, and culturally dominant and that
conduct. their dominance comes at the cost of others’
marginalization. Power is structural in that social
6.2 Skills for cultural competency structures and institutions reflect and reinforce the
Cultural competence involves at least seven separate experiences and advantages of the dominant
group(s).
skills, including the capacity to
ƒ “Relative power” refers to the extent to which a
(1) understand that cultures shape how individuals and particular social group’s experiences define the
groups think, act, and interact and how societies are cultural “norm” (while other groups are defined as
organized (i.e., “cultural awareness”); “other”) and refers to the extent to which social
(2) be self-aware of one’s own position and relative structures, systems, institutions, and practices
privilege within a culture; reflect the experiences of that social group.

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ƒ “Privilege” refers to the extent to which an images or text in PowerPoint presentations that
individual or group benefits from their social cannot be seen by those with low or no vision.
group’s social, political, economic, and cultural ƒ “Microaffirmations” are simple behaviours that can
dominance. The Ontario Human Rights be incorporated into everyday practices to pre-empt
Commission defines privilege as “unearned power, microaggressions and build a more inclusive,
benefits, advantages, access and/or opportunities responsive legal practice. Examples include a lawyer
that exist for members of the dominant group(s) in proactively working to ensure the correct
society. [It can] also refer to the relative privilege of pronunciation of a client’s name, proactively asking
one group compared to another.” if a client requires any accommodations to access
ƒ “Dominant social group” refers to a group of people the lawyer’s services, and proactively ensuring that
within a society that enjoys social, political, the lawyer’s calendar identifies all major religious
economic, and cultural dominance, power, and holidays so that meetings and events are not
privilege. The group’s dominance is supported by scheduled on those days.
social, political, economic, and cultural institutions ƒ “Cultural homophily” refers to the tendency of
and systems that reflect and perpetuate the values, individuals to reach out to, bond with, and associate
power, and privilege of that group. The dominant with those whom they perceive to be similar to
group may or may not be the majority. themselves. This can create social and structural
ƒ “Dominant culture” refers to the social customs, dynamics that create real barriers to inclusive legal
values, beliefs, attitudes, behaviours, language, practice and service delivery.
religion, rituals, and other expressions of the culture
It is important for lawyers to recognize how each of the
of the dominant social group within a society that
are asserted and/or privileged as the norms of the above dynamics influences the degree of trust that exists
society. The dominant culture is supported by in the lawyer-client relationship, their means of
institutions, systems, and practices that reflect and communication, their comfort level in particular settings
perpetuate the power and privilege of the dominant or relationships, and the way in which lawyers are able to
social group’s culture. accurately communicate their clients’ realities and satisfy
ƒ “Unconscious bias” refers to the very rapid their clients’ instructions.
judgments about people and situations that each
person makes without being aware or conscious of Practising cultural competence is not about ignoring
the person’s own thought process. Every individual social difference rooted in culture and lived experience.
makes these unconscious judgments, which are Instead, it is an active practice by which lawyers identify
shaped by the individual’s background, experiences, both social differences from and similarities shared with
and cultural context. At a neurological level, all their clients and others with whom they interact. Both
individuals, through their experiences and training,
differences and similarities are then consciously analyzed
develop learned preferences, aversions, and
stereotypes by which they make judgments to identify how they impair effective and accurate
unconsciously and automatically. Unconscious bias communication.
leads individuals to classify others based on a range
of traits (such as race, gender, age, disability, High degrees of similarity may impair communication
education level, dress, job title, and physical because an assumed familiarity may lead lawyers to
appearance) and to act in accordance with that project their values and judgments onto the client, thus
unconscious bias. missing what the client is saying or seeking. For example,
ƒ “Microaggressions” are the repeated, commonplace a high degree of similarity may lead a lawyer to assume the
daily comments, questions, behaviours, and client wants to pursue litigation in a particular context
environmental indignities, whether intentional or because that is the choice the lawyer would make even if
not, that communicate hostile, derogatory, or that is not what the client actually wants.
negative slights against those who are not members
of the dominant culture. They are the daily array of At the same time, high degrees of difference may lead
behaviours that signal and reinforce the idea that lawyers to inaccurately understand information and
the recipient of the behaviour is an “outsider.” instructions from a client or to conduct themselves in a
Examples include licensees, judges, and court
way that is disrespectful to a client. A lawyer may not
personnel assuming that racialized lawyers are
interpreters or the accused; racialized individuals understand what certain facts or experiences mean to a
repeatedly being asked, “Where are you from? No, client if the lawyer does not make the effort to listen deeply
where are you really from?”; racialized individuals to the client, understand the client’s reality in the relevant
being complimented on how well they speak English context, and ask the client what the experience means. A
even if it is their first language; events where the lawyer who has never experienced racial profiling may not
food being served is not suitable for multiple diets; understand the indignity to which racialized individuals
those abstaining from alcohol (whether for health or
religious reasons) repeatedly being encouraged to are routinely subjected when they are racially profiled in
have a drink; and presenters failing to describe schools, in stores, while driving or walking in the

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CHAPTER 2 PROFESSIONAL RESPONSIBILITY

community, or while otherwise going about their daily lawyers understand how experiences of systemic
activities. discrimination in law and by actors or institutions within
the legal system (such as street checks by police that
Miscommunication due to assumed familiarity or
disproportionately target Black, Indigenous, and other
unexamined difference may undermine trust in the
racialized communities) may affect clients’ choices,
lawyer-client relationship and in the administration of
actions, and degree of trust in the legal system.
justice.
A lawyer who is unsure of the proper cultural protocol in a
In all interactions with clients, lawyers may be engaged in
particular situation should proactively conduct research
cross-cultural communication because their knowledge of
about appropriate protocols, seek advice from others more
the law and their familiarity with the legal system may
experienced with working in those kinds of situations, and
place them in a position of privilege relative to their
seek guidance from authoritative sources. Lawyers could
clients, and this knowledge is itself an aspect of a unique
also ask the person involved for direction on the
culture: legal culture. A lawyer’s relative privilege may
appropriate protocols and necessary accommodations.
lead the lawyer to overlook how legal practices with which
This must be done with respect, for example, by admitting
the lawyer is familiar (e.g., determining what is “relevant,”
that one does not know the appropriate conduct in the
cross-examination, and the lengthy litigation process) are
situation and is trying to learn, to ensure that the person
alien and alienating to most people. Cultural competence
is treated in a way that is courteous and that allows the
includes the capacity to communicate effectively about
person to feel comfortable.
legal culture, legal processes, and the expectations a client
can have of the legal system. 7. Equality
At the same time, it is important to recognize that lawyers Lawyers have a particular responsibility to ensure that
who do not come from privileged groups may themselves their conduct both as service providers to clients and as
feel a dissonance with Canadian legal culture, which is employers does not discriminate but instead delivers an
steeped in British colonial origins. experience of “substantive equality.”

6.4 Culturally competent legal practice Substantive equality is the legal standard by which
equality is measured in Canada. It involves looking at the
A lawyer has special responsibilities by virtue of the
real impact that policies, practices, and actions have on
privileges afforded to the legal professions and the
people. It recognizes that treating all individuals
important role lawyers play in a free and democratic
identically does not produce equality because individuals
society to ensure that legal services are delivered in a
live in societies in which power imbalances and practices
manner that facilitates access to justice in a culturally
of social dominance (such as racism, sexism, colonialism,
competent way. Lawyers’ cultural competence is
ableism, and so on) privilege some groups and marginalize
necessary to maintain public confidence in the
others. “Formal equality,” which “treats likes alike” and
administration of justice and in the legal professions.
“treats unlikes differently,” does not achieve equality
Practising law and providing legal services in a way that is because it reinforces existing relationships of dominance
culturally competent affects the integrity of legal practice and oppression. Substantive equality recognizes that in
at the levels of both individual client service and the order for people to be equal, different treatment is often
broader public interest. required. True equality is based on principles of universal
design that ensure systems, institutions, and practices, to
For example, at the individual level, culturally competent
the greatest degree possible, incorporate the realities of
practice may include basic client service matters such as
the diversity of humanity and are equally accessible to all.
not scheduling meetings or hearings on a client’s religious
For example, physically accessible buildings enable all
holidays or days of worship or proactively asking each
people—those without physical disabilities, those with
client if the client requires any accommodations in the way
physical disabilities, and those with young children—to
the lawyer delivers legal services.
enter and navigate the space equally. However, a building
At a broader systemic level, culturally competent practice that is “physically accessible” by requiring those who use
may include recognizing that the fast-paced, directive wheelchairs, strollers, or other mobility devices to enter
style of speech that is prevalent in business and legal through a service entrance or loading dock is not creating
environments may impede information exchange and equal access even though everyone may technically be able
trust in relationships where the other person’s social or to enter the building.
political culture prioritizes all members having a chance to
In Withler v. Canada (Attorney General), the Supreme
speak, deep listening, and consensus decision making.
Court of Canada noted the following:
Culturally competent practice may also require that

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PROFESSIONALISM CHAPTER 2

Substantive equality, unlike formal equality, rejects the practices that support the integration of cultural diversity,
mere presence or absence of difference as an answer to equality, and inclusion into the practice of law and the
differential treatment. It insists on going behind the
facade of similarities and differences. It asks not only provision of legal services. For example, if a review of
what characteristics the different treatment is workplace practices identifies that male lawyers are
predicated upon, but also whether those characteristics disproportionately given opportunities for quality, career-
are relevant considerations under the circumstances. advancing work and mentorship, while women and
The focus of the inquiry is on the actual impact of the
racialized lawyers are not, mentoring and lawyer skill and
impugned law, taking full account of social, political,
economic and historical factors concerning the group. career development systems could be put in place to
ensure that all lawyers have equal access to quality, career-
Cultural competence enables lawyers to identify social advancing work. As another example, if significant client
difference and respond to it by adapting practices and networking or lawyer mentorship occurs at alcohol-
behaviours to prevent and remedy discrimination focused events, lawyers could shift their networking and
throughout their legal practices and in their interactions mentoring to more inclusive events.
with all persons whom they deal with in their professional
capacity. 8.1 Inclusive client service

Lawyers’ special responsibility to respect the diversity of Inclusive client service is about delivering quality service.
Ontario’s population requires practising in a way that Inclusion ensures all clients can be served, in a non­
accommodates difference and delivers substantive discriminatory way, to the same qualitative standard and
equality (see the examples in “Culturally competent legal experience in their interactions with their lawyer and the
practice,” above). This affects clients’ experiences of legal system. Increasing the diversity of lawyers whose
access to justice. It also affects the ability of members of perspectives are welcomed and incorporated into legal
the legal professions to work in conditions that respect practice enriches the quality of legal services by deepening
and include that difference. the understanding of how law affects different
communities and by enabling a broad range of
8. Inclusion and diversity perspectives to be effectively represented in law. It makes
Inclusion is a practice that consciously employs cultural the legal professions more welcoming for clients of all
competence in order to achieve substantive equality. backgrounds because it incorporates different practice
styles, values, forms of knowledge, and modes of social
Inclusion is not the same as diversity. Diversity is a interaction that reflect the diversity of clients served. It
quantitative measure of the degree to which people from meets lawyers’ obligation to exercise their skills in a
different communities are present in a specific social manner that protects the public interest and promotes the
environment, such as a law school, law firm, or legal
effective realization of rights in a democratic society.
department. Diversity initiatives aim to increase the
numerical representation of participants in that social Inclusive client service begins with cultural competence
environment. But diversity does not measure the degree that builds trust and effective communication. But it
to which people from different communities thrive in that extends to encompass the many general practices that
social environment. For example, a law office may be shape clients’ experiences of the lawyer-client
diverse in that it has employees of different races, genders, relationship. Inclusive client service affects a wide range
religions, and abilities. But it will not meet the standard of of practice management systems, such as
substantive equality if employees who, for example, have ƒ operating in premises that are physically accessible;
disabilities, are from racialized communities, or are of
ƒ ensuring that partners and employees are trained in
marginalized genders or non-dominant religions cultural competence;
experience discrimination at work.
ƒ communicating in ways and formats that take into
By contrast, inclusion is a qualitative measure. It consideration the different needs of clients;
measures the degree to which social environments, ƒ ensuring that legal staff are trained in how to work
practices, and policies are universally accessible, with interpreters or client-support personnel;
incorporate difference, and provide substantive equality ƒ ensuring that food provided at client meetings or
in the quality of experience in that social environment. events is suitable for various diets and dietary
restrictions (vegetarian, vegan, halal, kosher, and
To meet their duty to not discriminate, lawyers must food allergies); and
consciously examine their practices to identify the ways
ƒ seeking accommodations to the way that legal
that systems operate to disadvantage some and advantage
proceedings are conducted so that the client can
others. Exclusionary practices then need to be changed. participate appropriately.
Lawyers must implement appropriate policies and

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CHAPTER 2 PROFESSIONAL RESPONSIBILITY

Many elements of inclusive client service benefit all that allow all lawyers and other employees to thrive in
clients. For example, accessible premises and plain their careers and contribute to the success of the
language communications are best practices that are workplace without facing discriminatory or systemic
beneficial to all clients. barriers. It also means taking seriously, investigating, and
addressing discriminatory or harassing behaviour in the
One best practice is for client intake protocols to require a
workplace if the lawyer-employer receives a complaint or
lawyer to proactively ask each new client if there are any
has reason to believe this behaviour may be occurring in
accommodations the client requires so that the lawyer can
the workplace.
deliver services appropriately. A proactive inquiry about
the need for accommodation demonstrates culturally Recruitment, mentorship, access to work, access to
competent awareness of differential needs and a positive support from legal staff, and promotions are just some of
commitment to deliver substantive equality. Proactively the key junctures in a lawyer’s career where inclusive
offering accommodation as a standard practice practices are needed to ensure equal opportunity for
destigmatizes a request for accommodation by success. They are also the areas in which lawyers from
normalizing inclusive and universal design in service equity-seeking groups have frequently encountered
delivery. barriers. The following are some examples of barriers that
may be encountered:
The range of possible accommodations that may be
necessary to provide inclusive legal services to clients is ƒ Unconscious bias and cultural homophily may lead
infinite. Some examples include hiring committees to feel a more immediate
connection with applicants who are “like” the
ƒ providing communications in large type or
machine-readable text for clients with low vision; existing members of the practice or to fear that
clients would not connect with lawyers who are
ƒ having scent-free policies in the workplace;
from other communities.
ƒ speaking and writing in plain language;
ƒ Unconscious bias and cultural homophily may lead
ƒ using documents with flow charts or other visual
senior lawyers to more readily mentor lawyers who
aids that help explain difficult concepts;
share cultural similarities with them while denying
ƒ scheduling meetings at specific points in the day or the same support to others.
for limited duration to accommodate a client’s
physical or mental health; ƒ Unconscious bias may lead lawyers from equity-
ƒ not scheduling meetings, proceedings, or special seeking groups to be held to higher standards and
events (such as training events for clients or social subject to greater scrutiny and criticism than
events) on a particular day that may be a day of lawyers from dominant groups (the phenomenon of
worship or a cultural or religious holiday for the “working twice as hard to get half as much”).
client;
ƒ In a workplace that is culturally homogenous and in
ƒ finding and using reliable language-interpretation
the face of cultural homophily, lawyers from equity-
and translation services; and
seeking groups may feel the need to act in ways that
ƒ adjusting deadlines and payment time frames to submerge aspects of themselves to better fit in. This
reflect a client’s capacity to pay legal bills.
is not only emotionally draining and isolating, but it
It is also important for lawyers to check in periodically prevents lawyers from drawing on their full
with clients to ensure that the accommodations provided personality and capacity to succeed.
are and remain appropriate and to set up tickler systems
ƒ Firm social events and business development events
that remind a lawyer to provide the requested
that revolve around the traditionally male-centred
accommodations for the client.
activities of golf, hockey, and events involving
Lawyers, as service providers, have a duty pursuant to the alcohol may negatively affect lawyers from equity-
Code to accommodate. This duty requires that lawyers seeking groups who are less able to use these events
make active efforts to accommodate their clients to the to build connections with clients or with colleagues
point of undue hardship. within their legal practice who may be sources of
work.
8.2 Inclusive workplaces
ƒ Firms with cultures that prioritize extroversion and
Building inclusive workplaces is a component of lawyers’ individualism may misinterpret (and assign
duty as employers to ensure that they are not negative value to) the behaviour of lawyers from
discriminating against their employees. It requires cultures that emphasize deference and respect to
building core practice management policies and practices those who are more senior; that emphasize

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PROFESSIONALISM CHAPTER 2

leadership through listening and reflection rather ƒ issues relating to creed and religious beliefs, to
than talking; or that prioritize collective success gender identity and sexual orientation, and to
over individual success and self-promotion. This individuals with disabilities.
may lead to equity-seeking lawyers being denied Lawyers should consider adopting policies to assist them
access to work and promotions. in meeting their legal and professional obligations.
ƒ Microaggressions discriminate against, alienate, The Law Society offers continuing professional
and isolate those who are not part of the dominant development programs and resources on other issues
culture. Coping with microaggressions can be related to equality, diversity, and inclusion. Additional
emotionally exhausting, enraging, and isolating. information regarding the Law Society’s equity initiatives
Lawyers who speak out about the microaggressions is available on the Law Society’s website.
they endure or who respond with frustration may be
labelled as “difficult” or “touchy,” which creates a 9.1 Working Together for Change:
Strategies to Address Issues of
vicious cycle of further “othering.”
Systemic Racism in the Legal
ƒ Practice models that do not accommodate Professions
pregnancy, parenthood, and family obligations for
Quantitative and qualitative studies by the Law Society
the care of relatives disproportionately prejudice
have documented that law students, articling students,
women and lawyers from cultures that prioritize
and lawyers from equity-seeking communities face
family and community obligations.
widespread direct discrimination, adverse-impact
The fact that these practices are not intentionally designed discrimination, and systemic discrimination. In 2016, the
to exclude or discriminate is immaterial. These kinds of Law Society’s Working Together for Change: Strategies
practices have impacts that create discriminatory barriers to Address Issues of Systemic Racism in the Legal
to success. Professions final report found these individuals face
explicit, indirect, and systemic racism at each stage in
8.3 Inclusive legal practice
their careers that negatively affects their experience in
Beyond delivering inclusive client service and creating such key areas as their law school, recruitment, hiring,
inclusive workplaces, lawyers should ensure that the access to desirable work, mentoring, promotion, and
principles of inclusion and cultural competence shape all access to partnership.
aspects of their legal practice and their dealings with all
As a result, the Law Society put into action strategies
whom they encounter in their legal practice and the justice
aimed at creating more inclusive legal workplaces in
system, including interactions with witnesses, other legal
Ontario; reducing barriers created by racism, unconscious
practitioners, judges, adjudicators, court or tribunal staff,
bias, and discrimination; and increasing the
and the media. In particular, commentary [6] of r. 4.2-1
representation of racialized licensees in the legal
requires that lawyers’ marketing practices conform to the
professions. As part of these strategies, lawyers are
requirements of human rights laws in force in Ontario.
required to, among other things,
9. Equity initiatives, strategies, and ƒ acknowledge in their annual report their special
resources responsibility, as set out in the Rules, to respect the
requirements of human rights laws in Ontario and
The Law Society has developed a series of best practices
to honour the obligation not to discriminate; and
and model policies to guide lawyers and paralegals in
promoting equity and diversity in all areas of their ƒ meet continuing professional development
requirements on topics of equality, diversity, and
practice. Model policies cover practices relating to
inclusion.
employment and the provision of services to clients. They
include guides to developing business policies that In addition, for legal workplaces of at least 10 licensees, a
address licensee representative must take the following steps:

ƒ fair hiring practices; ƒ develop, implement, maintain, and review a human

rights/diversity policy; and
ƒ preventing and responding to harassment,
discrimination, and violence in the workplace; ƒ complete an equality, diversity, and inclusion self-
assessment for the workplace every two years.
ƒ promoting equity and diversity in the workplace;
Further information on the professional obligations of
ƒ developing resources that comply with accessibility
licensees related to the principles of equality, diversity,
standards;
and inclusion is available on the Law Society’s website.
ƒ accommodation in the workplace and flexible work
arrangements; and

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CHAPTER 2 PROFESSIONAL RESPONSIBILITY

10. Discrimination and Harassment Counsel ƒ filing a complaint with the Law Society;
Program ƒ filing an application with the Human Rights
The Law Society also makes available the services of the Tribunal of Ontario; and
Discrimination and Harassment Counsel (DHC) Program ƒ in limited circumstances, allowing the DHC to
to anyone who may have experienced or witnessed mediate a resolution, if all parties agree.
discrimination or harassment by a lawyer or paralegal in The DHC Program is funded by the Law Society but
Ontario contrary to the Code. The services of the DHC operates independently of the Law Society and is strictly
Program are available without charge to the Ontario confidential.
public, law and paralegal students, articling and law­
practice-program students, legal staff, lawyers, and More information is available on the DHC website at
paralegals. www.lso.ca/dhc

The DHC does not provide legal representation or advice.

It is a confidential information service that identifies and
explains options for the individual using the service. The
options for recourse may include

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 Chapter 3
Who is the client

One of the lawyer’s most important duties is the duty of prospective client to evaluate whether to retain the lawyer
service to the client. The duty of quality of service includes or firm.
the lawyer’s responsibility to be competent, to maintain
Regardless of whether the lawyer or firm is retained by the
client confidentiality, to avoid conflicts of interest, and to
prospective client after this initial contact, the lawyer and
continue to represent the client unless there is good cause
firm have duties to protect the prospective client’s
to withdraw. Other responsibilities within the duty of
confidential information and to avoid potential conflicts of
service to the client relate to fees, billing clients, and
interest that involve the prospective client. Both of these
handling clients’ money and other property appropriately.
duties arise when the prospective client first contacts the
Because most of the duties outlined in the Rules of
lawyer or firm and continue indefinitely.
Professional Conduct (Rules) are those that are owed to
the client, a lawyer must always know who the client is. 1.2 The lawyer-client relationship
Lawyers often have difficulty clearly distinguishing which A “client” is a person who
organization, individual, or group of individuals is their
ƒ consults a lawyer and on whose behalf the lawyer
client. The need to “identify the client” may vary renders or agrees to render legal services; or
depending on the context. For example, a lawyer
ƒ having consulted with the lawyer, reasonably
ƒ must determine whether a lawyer-client concludes that the lawyer has agreed to render legal
relationship exists between the lawyer and the services on the person’s behalf.
individual or organization to determine to whom
the lawyer owes client-related duties and from Once a prospective client becomes a client, the lawyer has
whom the lawyer will take instructions; the additional duty to provide legal services competently,
as discussed later in these Study Materials.
ƒ must comply with the requirements of By-Law 7.1,
made under the Law Society Act, by obtaining If a lawyer is consulted by a person (an individual or
identifying information about the client and by organization), and the lawyer provides or agrees to
verifying the identity of the client when engaging in
provide legal advice to that person, a lawyer-client
or providing instructions with respect to the receipt,
payment, or transfer of funds; relationship exists. This will be the case whether the
lawyer met with the person at the lawyer’s place of work
ƒ should set out the client’s name in a retainer
or in a less formal or non-business setting, such as a social
agreement or engagement letter to identify who
retained the lawyer to provide legal services; and gathering. The provision of legal advice constitutes the
rendering of legal services.
ƒ should send a non-engagement letter that identifies
to whom the lawyer will not be providing legal In other cases, where no legal services were rendered and
services (i.e., identifies who is not a client). the lawyer did not agree to render any legal services, the
1. Definition of client — r. 1.1-1 lawyer will need to look at the facts of the situation to
determine whether a lawyer-client relationship has been
1.1 Prospective client established. The key issue in such cases is whether it is
The lawyer must recognize when an individual or reasonable for the person to conclude that the lawyer has
organization becomes a “prospective client.” A prospective agreed to render legal services on that person’s behalf.
client is anyone seeking advice or assistance on a matter Because a lawyer-client relationship may be created
invoking the lawyer’s professional knowledge, even informally, lawyers should be alert to situations where a
though the lawyer has not prepared a retainer agreement, person may believe that the person is represented by the
rendered an account for fees and disbursements, or agreed lawyer and that the person’s rights are being protected by
to represent that person. that lawyer, even though the person did not formally
When the prospective client contacts the lawyer or firm for retain or even meet with the lawyer. This situation can
the purpose of seeking legal advice or assistance, the arise when a lawyer does not make it clear whether the
prospective client may reveal confidential information lawyer has been retained to provide legal services. In such
necessary for the lawyer to determine if the lawyer may act cases, the lawyer is unaware that the person believes that
(e.g., to ensure no conflict of interest exists) or for the the person is a client to whom certain duties must be
fulfilled and that these duties exist.

15
CHAPTER 3 PROFESSIONAL RESPONSIBILITY

Lawyers should be cautious when dealing with persons on the client’s matter. The following are situations where
who it may be difficult to identify the client or the party
authorized to instruct the lawyer on the client’s behalf.
ƒ consult with the lawyer on a matter but do not
clearly indicate whether they want to hire the lawyer
2.1 Joint clients — rr. 3.4-5–3.4-9 and
or pursue the matter;
commentaries
ƒ are third parties who accompany the lawyer’s client
and are present during the client’s consultation with A “joint retainer” occurs where the lawyer has been
the lawyer (e.g., a friend, family member, or retained to represent two or more clients in the same
business associate); or matter. As with any retainer, lawyers should clearly
ƒ speak to the lawyer casually or socially about their identify the clients to whom legal services will be provided
legal issue or matter outside the lawyer’s place of to ensure that they can fulfill their duties to those clients.
business or business hours. Before a lawyer may accept joint clients, the lawyer must
To avoid a person concluding (whether reasonably or ensure that there are no conflicts of interest and must
unreasonably) that the person is a client when the lawyer advise each client of the following:
does not intend to establish a lawyer-client relationship, ƒ The lawyer has been asked to act for both or all
lawyers should determine whether they have or have not parties.
been retained to provide legal services. Lawyers should ƒ No information received about the matter from one
clearly communicate what role they will fulfill for the joint client can be treated as confidential where the
person and should other joint client(s) are concerned (i.e., information
provided by one joint client about the matter cannot
ƒ confirm in writing whether they will act for a be withheld from the other joint client(s)).
prospective client who has consulted with them (i.e.,
in a retainer agreement or engagement letter or in a ƒ If a conflict develops between or amongst the joint
non-engagement letter); clients that cannot be resolved, the lawyer cannot
continue to act for both or all of them and may have
ƒ inform third parties who attend meetings with a to withdraw completely.
client that they do not represent them and represent
the client only; and After being informed of the above, a lawyer may represent
ƒ avoid discussing legal matters outside the working the clients jointly if all clients give separate consent.
environment or any working relationships. Consent must be in writing or recorded in a separate
written communication to each client. A lawyer owes each
1.3 Firm clients joint client a duty of undivided loyalty and must not favour
The Rules define “client” as including “a client of the law the interests of one over the interest of the other(s).
firm of which the lawyer is a partner or associate, whether Where the lawyer has a continuing relationship with one
or not the lawyer handles the client’s work.” This means of the joint clients for whom the lawyer acts regularly,
that the clients of a lawyer’s partner or associate in the before accepting the joint retainer, the lawyer must advise
same firm are also the lawyer’s clients, and vice versa. the other client(s) of the continuing relationship and
Lawyers’ duties to clients are owed to all clients of the firm. recommend that the other client(s) obtain independent
The lawyer must avoid conflicts that exist or may arise legal advice about the joint retainer. In addition, if there
regarding other clients of the firm, and every lawyer at the are differing degrees of knowledge, vulnerability, or
firm owes the duty of confidentiality to all other clients of authority among the clients, the lawyer should consider
the firm. suggesting that they obtain independent legal advice
Each time the firm deals with a prospective client or is before agreeing to the joint retainer to ensure the clients’
retained by a new client, every lawyer and staff member of consent to the joint retainer is informed, genuine, and
the firm should be notified of the client and of the related uncoerced. Independent legal advice is discussed in
and instructing parties in that matter. Proper file- and Chapter 6 (Conflicts of interest) of these Study Materials.
office-management systems, especially firm-wide Regardless of whether the lawyer receives the clients’
conflicts checking systems, should be used to ensure there consent to act in a joint retainer, the lawyer should not act
is no unintended breach of a duty owed to a firm client. for more than one client where it is likely that the clients
will disagree on an issue or the clients’ interests, rights, or
2. Determining who is the client
obligations will diverge during the retainer.
Even when it is apparent what organization, individual, or
group of individuals is the client, situations may arise When a lawyer accepts more than one client in a matter,
during the retainer that create confusion as to who has the lawyer must also be clear as to who will be providing
proper authority to provide the lawyer with instructions the lawyer with instructions regarding the matter. To

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WHO IS THE CLIENT CHAPTER 3

ensure there is no misunderstanding, the lawyer should concerning the third party and any subsequent changes to
discuss whether one, some, or all joint clients will give those directions.
instructions. This should be confirmed in writing either in
the retainer agreement or engagement letter. 2.4 Organizations — r. 3.2-3 and
commentary
If a contentious issue arises between or amongst clients
When acting for an organization, the lawyer should
who have consented to a joint retainer, the lawyer must
determine which officers, directors, shareholders,
not advise any of them on the contentious issue. In such
employees, or agents of the organization may properly
circumstances, the lawyer must refer the clients to other
give instructions on the organization’s behalf. This should
lawyers with respect to the contentious issue or, if no legal
be confirmed in writing via a retainer agreement or
advice is required and the clients are sophisticated, advise
engagement letter. To avoid misunderstanding, any
them that they have the option to settle the contentious
subsequent changes to those authorized to give
issue by direct negotiation in which the lawyer does not
instructions should also be confirmed in writing. The
participate. If the contentious issue is not resolved, the
lawyer should confirm with the instructing agents (i.e.,
lawyer must withdraw from the joint representation.
those properly authorized to instruct on the organization’s
Nonetheless, where clients agree that if a contentious
behalf) that the lawyer acts for the organization and not
issue arises the lawyer may continue to advise one of them,
for its instructing agents.
then the lawyer may advise that client about the
contentious matter and must refer the other client(s) to If the lawyer is retained to act for both an organization and
another lawyer for that purpose. an officer, director, shareholder, employee, or agent of the
organization in the same matter, the lawyer must
2.2 Authorized representatives — r. 3.2-9 determine whether a conflict of interest exists that would
and commentary
prevent the lawyer from acting for both the organization
Establishing who the client is and who will provide and the individual. If there is no such conflict, the lawyer
instructions may be difficult where a client representative may act for both but must comply with the joint retainer
is involved. If asked to provide legal services to an rule.
individual who lacks legal capacity to give instructions or
enter binding legal relationships, the lawyer must 2.5 Limited scope retainers — rr. 3.2-1A–
3.2-1A.2 and commentaries
determine who the individual’s lawfully authorized
representative is (e.g., a litigation guardian, an attorney A “limited scope retainer” is a retainer where the lawyer
acting under a power of attorney, or a guardian of and client agree that the lawyer will provide legal services
property). The lawyer must be clear as to who will be for part, but not all, of a client’s legal matter (e.g., to
providing instructions on the client’s matter and should negotiate a settlement) or perform a specific legal task in
confirm this in writing. relation to the client’s matter (e.g., prepare a demand
letter or provide a second opinion). Prior to agreeing to
Whether or not a lawfully authorized representative has
assist the client in a limited scope retainer, the lawyer
been appointed for a client who lacks legal capacity, the
should carefully assess whether, under the circumstances,
lawyer must comply with the Rules regarding clients with
it is possible to render those services in a competent
diminished capacity.
manner. If so, the lawyer must advise the client honestly
2.3 Third parties and candidly about the nature, extent, and scope of the
services that the lawyer can provide and, where
As noted above, in some cases, the client brings a friend or
appropriate, whether those services can be provided
family member who is not involved in the matter to
within the financial means of the client. The lawyer must
meetings with the lawyer, or a third party pays for the
also confirm the limited terms of the engagement in
lawyer’s services. The friend, family member, or third
writing and, when practicable to do so, give a copy of the
party may try to instruct the lawyer or ask the lawyer to
written document to the client.
reveal information about the client. To ensure there are no
misunderstandings about the involvement or authority of Limited scope retainer clients are owed the same duties of
the third party as it relates to the client’s matter, the competence, confidentiality, and avoidance of potential
lawyer should meet with the client privately to obtain conflicts of interest. Thus, when acting in a limited scope
direction as to how the lawyer should deal with the third retainer, the lawyer must ensure that the client and any
party. The lawyer should also confirm in writing who the related parties are included in the lawyer’s conflicts
client is, whether the lawyer may divulge confidential checking system. Limited scope retainers are discussed
information to the third party, and the client’s directions further in Chapter 9 (Managing the client relationship) of
these Study Materials.

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CHAPTER 3 PROFESSIONAL RESPONSIBILITY

2.6 Unrepresented parties — r. 7.2-9 and must take in some cases to confirm the identity of the
commentary client and any third party. It is the lawyer’s responsibility
Lawyers have a special obligation when representing a to determine if client or third party identification and
client in a matter where another party is not represented. verification are required and to obtain and retain relevant
The lawyer must take care to see that the unrepresented information or documents to comply with these
person obligations.

ƒ is not proceeding under the impression that the There are exemptions to the identification and verification
unrepresented person’s interests will be protected requirements outlined in the by-law for
by the lawyer; and
ƒ certain licensees (s. 22(2));
ƒ understands that the lawyer is acting exclusively in
the interests of the client and accordingly the ƒ certain funds (s. 22(3)); and
lawyer’s comments may be partisan. ƒ certain clients or third parties (s. 22(4)).
The lawyer should confirm, in writing, the steps taken to Lawyers should consult ss. 22(2)–(4) to determine
fulfill these obligations. The lawyer should also consider whether identification or verification of a client or third
urging the unrepresented person to obtain independent party is required in any given circumstance.
legal representation. When dealing with an unrepresented
person who refuses to obtain legal representation, the 3.1 When identification is required —
By-Law 7.1, ss. 22 and 23(1)
lawyer should confirm this refusal in a letter to the
unrepresented person. Subject to the limited exemptions discussed above, a
lawyer must identify a client or any third party whenever
If an unrepresented person requests that the lawyer also
the lawyer is retained to provide legal services to the client.
advise or act on the person’s behalf, the lawyer must
decline if the lawyer’s client and the unrepresented person Identification must be done in the manner required by the
are on opposite sides of a dispute since this would create a by-law. Lawyers must also record all information obtained
conflict of interest (r. 3.4-3). Conflicts of interest are to identify the client or third party and the date on which
discussed further in Chapter 6 (Conflicts of interest) of it was obtained.
these Study Materials.
3.1.1 Identifying information when the
Even where the parties’ interests seem to be aligned, the client or third party is an individual
lawyer must evaluate whether representing both would — By-Law 7.1, s. 23(1)
pose a potential or actual conflict of interest. The lawyer When required to identify a client or third party, the
should also assess the risk that the parties’ interests may lawyer must obtain certain identifying information. The
diverge at a later date. If the lawyer is permitted to act for required information differs depending on whether the
the unrepresented person and the existing client in the client or third party is an individual or an organization. If
same matter, the lawyer must comply with the provisions the client or third party is an individual, the lawyer must
of the joint retainer rule, as previously outlined. obtain the individual’s
3. Client identification and verification ƒ full name;
requirements — By-Law 7.1, Part III
ƒ home address and phone number;
By-Law 7.1 outlines client identification and verification ƒ occupation(s); and
requirements for licensees. These obligations require
ƒ business address and phone number, if applicable.
lawyers to conduct sufficient due diligence to ensure that
they do not unwittingly become involved in or act 3.1.2 Identifying information when the
recklessly with respect to money laundering, terrorist client or third party is an
financing, fraud, or other illegal activities. Effective organization — By-Law 7.1, ss. 20,
January 1, 2022, these requirements were amended to 23(1)–(2.3), and (12.1)–(12.2)
provide enhanced protection. An “organization” is defined in the by-law as a body
corporate, partnership, fund, trust, co-operative, or
For purposes of these requirements, “identification” refers
unincorporated association. If the lawyer is required to
to the basic identifying information the lawyer needs to
identify a client or third party that is an organization, the
obtain about the client and any third party when retained
lawyer must obtain
to provide legal services, such as a name and address.
“Third party” in this context means an individual or ƒ the organization’s full name;
organization that the client is acting for or representing. ƒ the organization’s business address and phone
“Verification” refers to the additional steps the lawyer number, if applicable; and

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WHO IS THE CLIENT CHAPTER 3

ƒ the name, position, and contact information for ƒ Credit-file method: Information in the
each individual who is authorized to give individual’s credit file that is located in Canada and
instructions on behalf of the organization with has been in existence for at least three years.
respect to the matter for which the lawyer is ƒ Dual-process method: Any two of the following
retained. pieces of information, each from a different source
In addition, for an organization other than a financial that is not the individual, the lawyer, or an
institution, public body, or reporting issuer, the lawyer individual acting on behalf of the lawyer:
must obtain, if applicable, — information from a reliable source that
contains the individual’s name and address;
ƒ the organization’s incorporation or business
identification number and the place where it was — information from a reliable source that
issued; and contains the individual’s name and date of
birth; and
ƒ information regarding the general nature of the
business or activities engaged in by the — information that contains the individual’s
organization. name and confirms that the individual has a
deposit account, credit card, or other loan
3.2 When verification of identity is required amount with a financial institution.
— By-Law 7.1, ss. 20, 22(1)(b), 23(4), A reliable source is an originator or issuer of
(8), and (13) information that a lawyer trusts to verify the
By-Law 7.1 requires a lawyer to verify the identity of a identity of the client. To be reliable, the source
should be well known and reputable. Examples of
client and any third party whenever the lawyer engages in
reliable sources of information can be found on the
or gives instructions on behalf of the client or third party Law Society’s website.
regarding the receipt, payment, or transfer of funds (a
financial transaction). The term “funds” is defined in By- Lawyers may also use an agent to verify the identity of an
Law 7.1 as cash, currency, securities, negotiable individual if the requirements of By-Law 7.1 are met. For
instruments, and other financial instruments that indicate more information on the use of an agent to verify identity,
a person’s title or interest in them. see “Verifying client or third-party identity, use of agent —
By-Law 7.1, s. 23(11)” below.
Unless an exemption applies, verification must be done in
the manner and timeframe required by the by-law. To comply with the by-law, where the client or third party
is an individual, the lawyer must verify the individual’s
The documents and records used to verify the identity of identity immediately after first engaging in or giving
the client and third party must be authentic, valid, and instructions in respect of a financial transaction. As a best
current, and other information used must be valid and practice, however, the lawyer should verify the
current. individual’s identity before or when the lawyer first
In addition, lawyers must obtain a copy of every document engages in such activity.
used to verify the identity of any individual or Lawyers may use more than one client-verification
organization, including a copy of every document used by method and may review as many documents or as much
an individual acting on behalf of the lawyer to comply with data or information as is necessary to verify an individual’s
the verification requirements. identity so long as the documents and records are
authentic, valid, and current or the information is valid
3.2.1 Verifying identity when the client or
third party is an individual — By-
and current.
Law 7.1, ss. 22(1)(b), 23(4)–(5), Lawyers must take additional steps when verifying the
and (7)–(10) identity of an individual who is younger than 12 years of
To verify the identity of a client or third party who is an age or who is 12 years of age or older but younger than
individual, lawyers must use one of the following client- 15 years of age. These requirements are set out in
verification methods as provided in By-Law 7.1: ss. 23(9)–(10) of By-Law 7.1.
ƒ Government-identification method: A 3.2.2 Verifying identity when the client or
government-issued photo identification document, third party is an organization — By-
excluding a document that is issued by a municipal Law 7.1, ss. 22(1)(b), 23(4), and
government. Privacy laws in Ontario prohibit (6)–(7)
lawyers from collecting, recording, using, or making
a note of an individual’s health card number for When a lawyer engages in or gives instructions in respect
identification or verification purposes. of a financial transaction on behalf of a client or third party
that is an organization, the lawyer must verify the identity

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CHAPTER 3 PROFESSIONAL RESPONSIBILITY

of that organizational client and third party. The lawyer — the names and addresses of all trustees and all
must also verify the identity of each individual giving known beneficiaries and settlors of the trust, if
instructions on behalf of the organization using one of the applicable; and
client-verification methods for individuals, discussed — information establishing the ownership,
above. control, and structure of the organization.
The lawyer must record all the information obtained for
The type of documents and information required to verify
the purposes of identifying the organization and the date
the identity of a client or third party that is an organization
on which it was obtained. In addition to recording the
depends on the nature or type of organization.
information, the lawyer must take reasonable measures to
If the organization is a corporation or an organization confirm the accuracy of the identification information
created or registered under federal or provincial law, obtained and record the measures taken to confirm the
lawyers must obtain written confirmation from a accuracy of the information obtained and the date on
government registry of the organization’s existence, name, which the measures were taken.
and address, including the names of the organization’s
If the lawyer is unable to obtain or confirm the accuracy of
directors, if applicable. Examples of such documents and
the above information, the lawyer must
records include
ƒ take reasonable measures to identify the most
ƒ a certificate of corporate status issued by a public
senior managing officer of the organization;
body;
ƒ determine whether the client’s information in
ƒ a copy obtained from a public body of a record that
respect of the client’s activities, the source of the
the organization files annually such as an annual
funds, and the client’s instructions in respect of the
filing of the corporation; and
transaction are consistent with the purpose of the
ƒ a copy of a similar record obtained from a public retainer and the information obtained about the
body confirming the organization’s existence. client, and record the results of the determination
and the date on which it was made; and
Where the client or third party is an organization that is
not registered in any government registry (e.g., a trust or ƒ assess whether there is a risk that the lawyer may be
a partnership), the lawyer must verify the identity of the assisting in or encouraging fraud or other illegal
conduct, and record the results of the assessment
organization by obtaining a copy of the organization’s
and the date on which it was made.
constating documents, such as a trust or partnership
agreement, articles of association, or other similar record 3.3 Verifying client or third-party identity,
that confirms the organization’s existence. use of agent — By-Law 7.1, s. 23(11)

The lawyer must verify the identity of an organization no By-Law 7.1 permits lawyers to use an agent to verify the
later than 30 days after the lawyer first engages in or gives identity of an individual client or third party if, prior to the
instructions in respect of the financial transaction. As a agent acting, the lawyer and the agent enter into a written
best practice, however, the lawyer should verify an agreement. Lawyers should note that where a client is not
organization’s identity before or when the lawyer first present in Canada or the lawyer is unable to meet with the
engages in such activity. client face to face, lawyers are not required to use an agent
to verify the client’s identity; they may identify the client
3.2.3 Additional identification information themselves using the credit-file method or the dual-
required when verifying the identity process method discussed above.
of an organization — By-Law 7.1,
ss. 23(2.1), (2.2), and (12.1)–(12.2) In addition to entering into a written agreement with the
There are additional identification requirements if a agent prior to verifying identity, lawyers must satisfy
lawyer engages in or gives instructions regarding a themselves that the verification information obtained by
financial transaction on behalf of a client or third party the agent on their behalf is valid, is current, and complies
that is an organization. Specifically, the lawyer must with the verification requirements set out in By-Law 7.1.
To comply with this requirement, as a best practice,
ƒ obtain the name of each director of the lawyers should consider having the agent complete an
organization, unless the organization is a securities attestation. A sample agent letter agreement, including an
dealer; and
attestation, is available on the Law Society’s website.
ƒ make reasonable efforts to obtain
— the name and address of each person who
owns (directly or indirectly) 25% or more of
the organization or of the shares of the
organization, if applicable;

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WHO IS THE CLIENT CHAPTER 3

3.4 Previous identification and verification Specifically, lawyers must periodically monitor their
— By-Law 7.1, ss. 23(2.3) and (12) professional relationship with the client to
A lawyer is considered to have complied with the ƒ determine whether the client’s information in
identification requirements for an individual or an respect of the client’s activities, the source of funds,
organization if a person in the lawyer’s firm (i.e., an and the client’s instructions in respect of the
employee, another lawyer, or a paralegal), acting on behalf transactions are consistent with the purpose of the
retainer and the information obtained about the
of the lawyer, complies with the identification
client required for identification and verification
requirements. purposes; and
A lawyer is considered to have complied with the ƒ assess whether there is a risk that the lawyer may be
verification requirements if assisting in or encouraging fraud or other illegal
conduct.
ƒ the lawyer previously complied with the verification
requirements and has no reason to believe the The lawyer must keep a record of the measures taken to
information or the accuracy of the information has confirm the above, the information obtained, and the date
changed; on which the measures were taken and the information
ƒ an employee or another licensee who practises law was obtained.
or provides legal services through the lawyer’s firm,
acting on behalf of the lawyer, complies with the 3.7 Records — By-Law 7.1, ss. 23(12.1)–
verification requirements; or (15)
ƒ an agent, acting on behalf of the lawyer, previously As noted above, when a lawyer is required to identify a
complied with the verification requirements, either client or third party, the lawyer must retain a record of the
acting in the agent’s own capacity at the time or identifying information obtained and the date on which it
acting on behalf of another lawyer or a paralegal at
was obtained.
the time pursuant to an agreement.
When relying on a previous verification for any client or When a lawyer is required to verify the identity of a client
third party, a lawyer should confirm that the information or third party, the lawyer must retain a copy of every
and documents initially obtained to verify the identity of document used for verification, including a copy of every
the client or third party are current and valid and that the document used by an employee or other licensee at the
information or accuracy of the information has not licensee’s firm or an agent who has undertaken to verify
changed. the identity of the client or third party on behalf of the
lawyer.
3.5 Source-of-funds information required
when engaged in a financial transaction The record of the identifying information and copies of
— By-Law 7.1, ss. 23(2) and (12.1) every document used for verification must be kept for the
longer of
In addition to complying with the identification and
verification requirements above, when the lawyer is ƒ the duration of the professional relationship with
engaged in or giving instructions in respect of a financial the client and for so long as is necessary to provide
service to the client; and
transaction, the lawyer must also obtain additional
information from the client about the source of the funds ƒ six years following the completion of the work for
being received, paid, or transferred. Source of funds which the lawyer was retained.
means the economic activity that generated the funds or This information may be kept electronically, only if a
the origin of the funds for the financial transaction. paper copy can be readily produced from it.

The lawyer is required to record all information obtained 3.8 Withdrawal obligations — By-Law 7.1,
for the purposes of the source-of-funds requirement and s. 24
the date on which it was obtained.
The by-law also outlines circumstances where, in the
3.6 Monitoring obligations — By-Law 7.1, course of identifying or verifying the identity of a client or
s. 23.1 third party, the lawyer must withdraw. If the lawyer knows
or ought to know that the lawyer is or would be assisting
When lawyers engage in or give instructions in respect of
the client in fraud or other illegal conduct, the lawyer must
a financial transaction and the matter is ongoing, they also
immediately cease engaging in any activities that would
have an obligation to monitor the professional
assist the client in fraud or other illegality; if unable to do
relationship with the client.
so, the lawyer must withdraw from acting for the client.
This obligation applies whether the lawyer’s suspicions

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CHAPTER 3 PROFESSIONAL RESPONSIBILITY

arise during the identification and verification process or Withdrawal from representation is discussed in
at any time throughout the retainer. Under the Rules, Chapter 10 (Withdrawal from representation) of these
lawyers also have a duty to withdraw in cases where the Study Materials.
client’s conduct or proposed conduct is dishonest,
fraudulent, criminal, or illegal and, despite the lawyer’s
advice, the client insists on continuing with such conduct.

22 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

 Chapter 4
Competence

Most clients retain licensees because they do not have the factors in deciding whether they are competent to handle
knowledge or skill to deal with the legal system on their a client’s matter:
own. As members of the legal professions, lawyers are ƒ the complexity and specialized nature of the matter;
perceived as knowledgeable, skilled, and capable in the
ƒ the lawyer’s general experience;
practice of law and provision of legal services. A client who
retains a lawyer is entitled to assume that the lawyer is ƒ the lawyer’s training and experience in the field;
competent to advise the client about the way in which to ƒ the preparation and study the lawyer is able to give
meet the client’s goals in the matter. the matter; and

A lawyer who is incompetent fails to serve the client, ƒ whether it is appropriate or feasible to refer the
matter to or associate or consult with another
discredits the legal professions, and taints the reputation licensee who is better suited to take on the matter
of the justice system in the eyes of the public. In addition and serve the client more effectively.
to damaging the lawyer’s own reputation and business,
The lawyer should also recognize that competence for a
incompetence may have the same impact on the lawyer’s
particular task may require seeking advice from or
partners and associates. Therefore, it is important that
collaborating with experts in non-legal fields. In these
lawyers understand, meet, and maintain the standards for
situations, the lawyer should, where appropriate, seek the
competence set out in s. 41 of the Law Society Act (Act)
client’s instructions to do so.
and the Rules of Professional Conduct (Rules).
If a lawyer is not competent to complete a task for a client
1. Required standard of competence —
and a disservice would be done to the client by
rr. 3.1-1–3.1-2 and commentary and
r. 3.7-7 undertaking the task, the lawyer should
ƒ decline to act for the client;
A lawyer shall perform the services undertaken on a
client’s behalf to the standard of a competent lawyer. A ƒ obtain the client’s consent to retain, consult, or
“competent lawyer” is one who has and applies the collaborate with a lawyer or paralegal who is
competent to complete that task; or
relevant knowledge, skills, and attributes in a manner
appropriate to each matter undertaken on a client’s behalf. ƒ obtain the client’s consent for the lawyer to become
Being competent enables a lawyer to deliver quality competent without undue delay, risk, or expense to
the client.
service that is courteous, thorough, efficient, diligent,
civil, and respectful. Though the Rules and Act do not Subject to the rules about criminal proceedings and the
require a standard of perfection, they do require the direction of the tribunal, a lawyer must withdraw if the
lawyer to meet minimum standards relating to six areas of lawyer determines that the lawyer is not competent to
competence: knowledge, skills, judgment, client service continue to handle a matter.
and communication, practice management, and
1.1 Technological competence — r. 3.1-2,
professional development. Under the Rules, a lawyer who commentaries [4A]–[4B]
fails to meet the minimum standards of professional
competence adversely affects the quality of service to To maintain the required standard of competence, the
clients, does a disservice to them, may bring the lawyer should
administration of justice into disrepute, and may be ƒ develop an understanding of and ability to use
subject to disciplinary action. technology relevant to the nature and area of the
lawyer’s practice and responsibilities; and
A lawyer must recognize a task for which the lawyer lacks
competence and the disservice that would be done to the ƒ understand the benefits and risks associated with
relevant technology, recognizing the lawyer’s duties
client by undertaking the task. A lawyer should not take on to the client, including the duty to protect
a client matter if the lawyer does not feel competent to confidential information.
handle the matter or cannot become competent to handle
The required level of technological competence will
the matter without undue delay, risk, or expense to the
depend on whether the use or understanding of
client. Lawyers should therefore consider the following
technology is necessary to the nature and area of a lawyer’s
practice and responsibilities and whether the relevant

23
CHAPTER 4 PROFESSIONAL RESPONSIBILITY

technology is reasonably available to the lawyer. In 1.3 Skills

determining whether technology is reasonably available, To meet the client’s objectives, lawyers may be required to
the lawyer should consider the following factors: use many skills, including
ƒ the lawyer’s or law firm’s practice areas; ƒ legal research;
ƒ the geographic location of the lawyer’s or law firm’s ƒ analysis;
practice; and
ƒ application of the law to the relevant facts;
ƒ the requirements of clients.
ƒ writing and drafting;
For example, in a litigation context, where a court
ƒ negotiation;
determines that the mode of proceeding for a client’s
matter is to be heard virtually, the lawyer for that client ƒ alternative dispute resolution;
should develop an understanding of what technology is ƒ advocacy; and
used to conduct the virtual hearing (e.g., ƒ problem solving.
videoconferencing platforms) and how to properly use
By accepting a client’s matter, lawyers effectively affirm
such technology. Lawyers who fail to develop such an
that they have the skills to properly complete the tasks
understanding and ability may be unable to comply with
required for the matter. When deciding whether to
the required standard of competence.
represent a client, the competent lawyer will consider
1.2 Knowledge what tasks have to be completed and whether the lawyer
has the skills to perform them.
To practise competently and provide competent legal
services, the lawyer must know both the general legal 1.4 Judgment
principles and procedures, and the substantive law and
Lawyers must apply intellectual capacity, deliberation,
procedures for any areas of law in which the lawyer
and judgment to all functions. When representing clients
practises or provides legal services. If the lawyer cannot
or performing any professional service, the competent
learn the legal principles and rules of procedure relating
lawyer applies
to an unfamiliar area of law without undue delay, risk, or
expense to the client, the lawyer should refuse to represent ƒ intellectual capacity: by using the lawyer’s ability to
the client in that matter. Competent lawyers are aware of understand legal concepts, issues, and facts and by
the limits of their knowledge and will consider such limits applying these in a logical manner to the client’s
cause;
when deciding whether to accept a client’s matter.
ƒ deliberation: by giving careful thought and
In addition to general and substantive legal knowledge, consideration to the matters being handled; and
the lawyer must have adequate knowledge about the
ƒ judgment: by using the lawyer’s ability to make
client’s matter to be able to properly advise or represent reasoned decisions when providing practical
the client. A competent lawyer accomplishes this by recommendations and advice to the client about the
effectively particular matter.
ƒ investigating facts; In “complying in letter and in spirit with all requirements
ƒ identifying issues; pursuant to the Law Society Act,” lawyers are also
required to apply appropriate judgment to their own
ƒ ascertaining client objectives;
conduct. Competent lawyers know the requirements,
ƒ considering possible options; and know why each requirement is important, and use this
ƒ developing and advising the client on appropriate knowledge and understanding to guide their conduct.
courses of action.
1.5 Client service and communication
Depending on the matter and the client, the lawyer may be
required to confirm information provided by the client or Adequately serving the client’s interest and effectively
to learn additional facts that may not be within the client’s communicating with the client is an important part of
knowledge. The competent lawyer will ensure that the competence. Effective communication with the client will
lawyer has gathered, carefully reviewed, and considered vary depending on
all necessary information before providing any opinion or ƒ the nature of the retainer;
advice as to a course of action that would most likely meet
ƒ the needs and sophistication of the client; and
the client’s goals. The lawyer must then take the necessary
steps to meet the client’s chosen course of action so that ƒ the need for the client to make fully informed
the lawyer can work to meet the client’s goal. Though a decisions and provide instructions.
matter may seem familiar, each client matter is unique.

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COMPETENCE CHAPTER 4

Lawyers must represent clients conscientiously, diligently, lawyer’s capacity for cultural competence affects the
and cost-effectively and must keep the client informed overall quality of service the lawyer can provide to clients.
regarding the client’s matter through all relevant stages Cultural competence is discussed in more detail in
and concerning all aspects of the matter in a timely and Chapter 2 (Professionalism) of these Study Materials.
effective manner. Lawyers should make use of the various
tools and methods available that allow them to 1.7 Practice management
communicate with clients in such a manner and should Another important part of competence is practice
discuss with clients any drawbacks or risks associated with management. Lawyers should use available systems,
a particular method of communication (e.g., when using technologies, or methods to make sure their practices
email or a cellphone). operate in a manner that helps them serve clients well, in
a timely manner, and at a reasonable cost. Competent
A lawyer should be wary of providing unreasonable or
practice management requires that lawyers effectively
over-confident assurances to the client. Many of the client
manage their
complaints made against lawyers result from the client’s
perception that the lawyer did not do what the client ƒ staff, via workplace policies and business
expected. Often, such complaints are an indication that procedures;
the lawyer failed to manage the client’s expectations about ƒ time, via planning and reminder systems and time-
what tasks would be performed for the client, when they docketing systems;
would be completed, and at what cost. ƒ finances, via billing procedures, money handling
policies, and record-keeping systems; and
Lawyers should ensure they understand what the client
expects, both at the beginning of and throughout the ƒ client information, via filing, organizational, and
retainer since client expectations may change as the storage systems, including conflicts checking
systems.
matter proceeds. If the client’s expectations change or if it
becomes impossible for the lawyer to meet the client’s Where appropriate, lawyers should consider using
original expectations, the lawyer must discuss this with checklists, worksheets, forms, or other related practice-
the client and obtain confirming or new instructions, as management tools to effectively and efficiently manage
the case may be. Any new or different instructions should tasks and minimize the risk of errors.
be obtained or confirmed in writing. The lawyer should
1.8 Professional development — adapting to
also explain to the client the circumstances under which change
the lawyer would not be able to follow the client’s
instructions (e.g., if the instructions require the lawyer to Lawyers must remain competent by ensuring that their
violate the Rules). As well, the lawyer should obtain an knowledge of the law and applicable procedures is current
acknowledgment from the client or send a confirming and that they continue to have the required skill level to
letter to the client when the lawyer knows that the client meet client needs. Lawyers must pursue professional
does not intend to follow the lawyer’s advice. development to ensure their abilities remain at the
required level of competence while adapting to changing
To avoid difficulties in the lawyer-client relationship, the requirements, legislation, rules, standards, techniques,
lawyer should discuss with the client all aspects of the and practices. The competent lawyer recognizes that
retainer. The competent lawyer ensures the client is maintaining and enhancing competence is an ongoing
informed of and agrees to the terms of the professional cycle of assessment, education or training, and
relationship and should confirm these terms in a written reassessment. This obligation to maintain competence
retainer agreement or engagement letter that addresses assists lawyers in better serving their clients and avoiding
the potential complaints and claims. Annual requirements for
ƒ specific legal services the client will receive from the continuing professional development (CPD) activities are
lawyer; outlined in By-Law 6.1, made under the Act, and discussed
ƒ specific results the lawyer may be able to or is likely in more detail in Chapter 13 (Practice management) of
to achieve for the client; these Study Materials.
ƒ costs associated with achieving those goals; and The by-law provides that lawyers are required to complete
ƒ time required to complete the legal services and one hour of eligible CPD activities for each calendar month
meet those goals. of the year during which the lawyer practises law or
provides legal services. Of the total CPD hours, at least
1.6 Cultural competence
25% must be professionalism hours. A lawyer practising
Because it is a skill of effective communication, cultural law or providing legal services for a full calendar year must
competence is part of a lawyer’s core competence. A

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CHAPTER 4 PROFESSIONAL RESPONSIBILITY

therefore complete a minimum of 12 CPD hours, at least incorporated under the laws of Ontario, or a not-for-profit
three hours of which must be professionalism hours. corporation permitted under the laws of Ontario to
“Eligible activity” is defined in the by-law as “an activity operate in Ontario.
that serves to maintain or enhance a licensee’s
To meet the standard of competence, lawyers who provide
professional knowledge, skills, attitudes, or ethics.”
legal services to clients through CSOs must
Professionalism hours address topics of ethics,
professional responsibility, practice management, and/or ƒ have full control over the delivery of legal services
equality, diversity, and inclusion (EDI). Substantive hours (e.g., by maintaining a direct relationship with the
client);
cover either substantive or procedural law topics and/or
related skills. Non-legal subjects may also be eligible for ƒ act on behalf of the client’s interest;
substantive hours if they are relevant to the lawyer’s ƒ advise the client honestly and candidly about the
practice and professional development. Only nature, extent, and scope of the legal services that
professionalism hours must be accredited by the Law the lawyer can provide through the CSO;
Society of Ontario. ƒ protect client confidentiality and privilege;
ƒ avoid conflicts of interest between the client and the
1.8.1 Equality, diversity, and inclusion
CSO and establish a system to search for such
training
conflicts; and
Every calendar year, lawyers must complete at least one ƒ maintain all other professional obligations including
professionalism hour that addresses EDI concepts and independence, integrity, candour, and respect for
principles. This hour counts towards the three the administration of justice.
professionalism hours required each year. Like other In addition, lawyers are prohibited from directly or
professionalism hours, EDI professionalism hours must indirectly charging their clients a fee for their services,
be accredited by the Law Society. paying or accepting referral fees, or operating a trust
Ongoing professional education or training on EDI is account in connection with the legal services rendered
required to ensure the skills of cultural competency through the CSO. For further information, see Chapter 8
remain current as social and legal understandings of (Fees and disbursements) and Chapter 14 (Accounting,
discrimination and equality evolve. Two examples are bank accounts, and bookkeeping) of these Study
illustrative. The use of non-discriminatory and inclusive Materials.
language regarding gender, gender identity, and gender
2. Quality of service — r. 3.2-1 and
expression is continuously evolving, as is respectful social commentary
protocol. As well, the understanding of the range of
behaviours (e.g., unconscious bias and microaggressions), A lawyer’s duty to perform any services undertaken on a
assumptions, and prejudices that contribute to client’s behalf to the standard of a competent lawyer must
discrimination (e.g., sanism, which is discrimination be read with the quality of service rule. The quality of
against persons due to a mental trait or condition that they service required of a lawyer is service that is competent,
have or are perceived as having) continues to develop and timely, conscientious, diligent, efficient, and civil. A
deepen. lawyer has a duty to provide courteous, thorough, and
prompt service to clients. In other words, competence is
Lawyers should ensure that EDI training is provided to all only one of the elements of the quality of service required
law office personnel so that their law practice is managed of a lawyer. As a result, competent lawyers may still fail to
and legal services are delivered to clients in a culturally provide adequate quality of service to their clients.
competent way.
Providing the quality of service required under the Rules
1.9 Civil society organizations — r. 1.1-1, means that a lawyer should meet deadlines unless the
commentary, and rr. 3.1-2 and 3.2-1; lawyer is able to offer a reasonable explanation and ensure
By-Law 7 that no prejudice to the client will result. Moreover,
To make legal services more accessible, the Law Society regardless of whether a specific deadline applies, a lawyer
now authorizes lawyers to provide legal services to should be prompt in handling a matter, responding to
members of the public through a civil society organization communications, and reporting developments to the
(CSO) if the requirements of Part VI of By-Law 7, made client. In the absence of developments in a matter, a
under the Act, are met. lawyer should maintain the level of contact with the client
that the client reasonably expects. Client expectations and
A CSO is defined as a registered charity under the Income
managing these expectations by providing the appropriate
Tax Act (Canada), a not-for-profit corporation
level of client service are discussed in greater detail in

26 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

COMPETENCE CHAPTER 4

Chapter 9 (Managing the client relationship) of these

Study Materials.

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 Chapter 5
Confidentiality

To provide competent legal services to clients, lawyers relationship, unless the situation falls under one of the
must have all the information relevant to the client’s exceptions discussed later in this chapter. Lawyers must
matter. A lawyer cannot effectively serve the client unless keep all information they acquire about the business and
there is full and unreserved communication between affairs of the client confidential, regardless of whether the
them. For the client to freely provide any information, information is publicly available or known to others.
whether relevant or not, the client must feel completely
Lawyers should be cautious about permitting third parties
secure and entitled to proceed on the basis that matters
associated with the client (e.g., family members, intimate
disclosed to or discussed with the lawyer will be held in
partners, friends, neighbours, and business associates) to
strict confidence and used only for the client’s benefit,
be present during client meetings. Third parties do not
without any express request or stipulation on the client’s
have a professional obligation to maintain client
part. The lawyer’s duties of confidentiality and of loyalty
confidentiality. Disclosure, inadvertent or otherwise, by a
are essential for open communication between the lawyer
third party of confidential client information could
and the client throughout the professional relationship.
prejudice the client’s interests, compromise the client’s
1. Confidentiality versus privilege — right to claim privilege, or otherwise negatively impact the
r. 3.3-1 and commentary client’s case. In addition, the presence of a third party
during client meetings can cause confusion as to whom the
Though the term “privilege” is often used to refer to a
lawyer represents and may give rise to conflicts of interest
lawyer’s duty of confidentiality, the duty of confidentiality
as discussed in Chapters 3 (Who is the client) and 6
must be distinguished from lawyer-client privilege.
(Conflicts of interest) of these Study Materials. Lawyers
Privilege is an evidentiary rule of law and a
should ensure that clients are aware of the issues related
constitutionally protected right concerning oral or
to the presence of third parties at lawyer-client meetings
documentary communications between the client and the
and of the client’s sharing of a lawyer’s advice with a third
lawyer. It refers to the lawyer’s legal right to withhold
party.
information from another party, a tribunal, and
investigations, including law enforcement officials. However, the lawyer’s duty of confidentiality is not
absolute. Lawyers must disclose confidential information
The duty of confidentiality under the Rules of Professional
if required by law and may disclose confidential
Conduct (Rules) is much broader. It covers all information
information in the limited circumstances provided for in
obtained by a lawyer during and for the purpose of the
the Rules. To fulfill the obligation of confidentiality,
retainer, whether received directly from the client or from
lawyers must understand what information is
some other source, and applies regardless of whether
confidential, when the duty of confidentiality begins, and
others may share the knowledge. The source of the
to whom the duty of confidentiality is owed.
information and its intended use are not relevant for
determining whether information is confidential, though 2.1 Information that must be protected
these are elements of privilege.
Lawyers must protect all information concerning the
Privileged information is simply a subset of “all business and affairs of the client acquired during the
information concerning the business and affairs of the professional relationship. It does not matter where the
client acquired in the course of the professional information came from. Information that the lawyer
relationship.” In other words, all privileged information is receives from clients or from others about a client must be
also confidential information that must be protected protected regardless of the source of that information.
under the Rules. This includes information acquired or recorded in any
form, such as information provided verbally or via paper
2. The duty of confidentiality — r. 3.3-1
or electronic documents, emails, or video or audio
and commentary
recordings. It also includes the client’s papers and
The duty of confidentiality under the Rules requires property, as well as information that may not seem
lawyers to, at all times, hold in strict confidence all relevant to the matter for which the lawyer was retained.
information concerning the business and affairs of the
client acquired in the course of the professional Unless the lawyer is authorized by the client to do so or the
situation requires it, the lawyer should not reveal having

29
CHAPTER 5 PROFESSIONAL RESPONSIBILITY

been retained or consulted by a person about a particular 2.4 Duty to clients of civil society
matter, regardless of whether a lawyer-client relationship organizations — commentary, r. 3.1-2;
was established. Even the identity of a client is By-Law 7, Part VI
confidential. However, there are situations where the Lawyers providing legal services to clients through a civil
client’s authority to disclose confidential information may society organization (CSO) must ensure that they
be inferred. One example is where the lawyer is required implement the measures necessary to protect client
to reveal the identity of a client to advance the client’s confidential information, even from the CSO or other CSO
matter, such as by filing the necessary documents to bring employees. It is the lawyer’s responsibility to maintain the
or defend a claim. safety and confidentiality of client files and to guard
A lawyer should be cautious in accepting confidential against the improper disclosure of client information.
information on an informal or preliminary basis from Lawyers should inform the CSO and CSO employees about
anyone since possession of the information may prevent the lawyer’s duty of confidentiality to the client.
the lawyer from subsequently acting for another party in Where other non-legal services are provided through the
the same or a related matter. CSO (e.g., social, health, or other related services or
supports), or where the lawyer’s services are provided
2.2 When the duty arises and how long it
together with other services, the lawyer must ensure that
lasts
confidential or privileged information concerning the
The duty to protect confidential information arises when client is disclosed only with the client’s informed consent
the lawyer’s professional relationship with a person or as required by law.
begins. In addition to clients, lawyers also owe a duty of
confidentiality to prospective clients (i.e., anyone seeking 3. Disclosure, with client authority —
advice or assistance on a matter invoking the lawyer’s r. 3.3-1 and commentary
professional knowledge, even though the lawyer has not Lawyers must not reveal confidential information unless
prepared a retainer agreement, rendered an account for the client expressly authorizes the disclosure or the client’s
fees and disbursements, or agreed to represent that authority to disclose the information is implied by the
person). The confidentiality obligation applies and begins circumstances of the retainer. For example, where a
when a person first contacts the lawyer or the lawyer’s lawyer has been retained to act for a client in an
office. application before a tribunal, the lawyer has the client’s
The duty of confidentiality lasts indefinitely. It continues implied authority to disclose the information required by
after the professional relationship ends regardless of why the prescribed application form. The client’s authority can
the relationship ended or whether differences exist be implied by the fact that the lawyer was retained to do
all that is necessary to bring the application before the
between the lawyer and the client or prospective client. It
continues unchanged even if the current, prospective, or tribunal.
former client dies. A lawyer must protect confidential Even where the client’s authority is implied (e.g., to
information at all times and for all time unless the current, disclose confidential information to a third-party expert in
prospective, or former client consents to the disclosure or order to obtain the expert’s opinion, or to administrative
the lawyer is otherwise permitted or required to disclose staff hired to support the lawyer in handling the client’s
the information. matter), it may be prudent for the lawyer to confirm the
disclosure in the retainer agreement with or engagement
2.3 Confidentiality: duty to all clients,
letter to the client. Where the client’s authority was not
protected by all members of the firm
previously expressly obtained in writing or could not be
Lawyers owe the duty of confidentiality to every client implied and the client subsequently authorizes the
without exception, as set out in the Rules. This includes disclosure of specific confidential information, the lawyer
current, prospective, and former clients of the lawyer or should confirm this in a separate document.
firm. In addition, lawyers must ensure that all other
members of their firm, including employees, and anyone 4. Disclosure, justified or permitted
involved with the client’s matter understand and abide by without client authority
the duty of confidentiality set out in the Rules. Lawyers are There are situations where lawyers must or may reveal
ultimately responsible if someone they employ discloses confidential client information without the client’s
confidential information in a manner that breaches the authority. Lawyers must disclose confidential information
Rules. Accordingly, lawyers should establish office when required by law, by an order of a tribunal of
procedures to ensure that the confidentiality of client competent jurisdiction, or by the Law Society of Ontario.
information is protected. Lawyers are permitted, but not required, to disclose

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CONFIDENTIALITY CHAPTER 5

confidential information in order to prevent death or Where the lawyer has determined that there is a legal
serious bodily harm, defend against certain allegations or obligation to disclose confidential client information, the
claims, establish or collect their fees, secure legal advice lawyer should consider preparing a written record or
about the lawyer’s proposed conduct, or detect and resolve memo to file detailing the date, time, content of the
conflicts of interest. In all cases, the lawyer must not disclosure, the grounds to support the lawyer’s decision to
disclose more information than is necessary. disclose the confidential information, any copies of
relevant documents (e.g., court order), and the identity of
The conditions that must be satisfied in these situations
the person, body, or organization to whom disclosure was
are set out in the Rules. Lawyers should consult the Rules
made.
before taking any steps to reveal confidential information
and should take care to record those steps if taken. The However, where the lawyer has confirmed that there is no
following discussion highlights the required conditions. legal obligation to disclose confidential information, the
lawyer must not comply with the demand or request
4.1 Justified disclosure, legally required — without client authority. The lawyer
rr. 3.3-1–3.3-1.1
ƒ must inform the client of the demand or request for
The duty of confidentiality under the Rules does not disclosure and advise the client on privilege and the
supersede the law. This means that lawyers must disclose legal consequences of disclosure;
confidential information if required by law, order of a ƒ must obtain the client’s authority and instructions
tribunal of competent jurisdiction, or the Law Society. In to disclose information before complying with the
these instances, neither the lawyer nor the client has any demand or request;
choice in the matter. For example, a lawyer must disclose ƒ should obtain or confirm these instructions in
confidential client information if a judge or member of a writing;
tribunal orders the lawyer to do so. However, the lawyer
ƒ should note in the client file the specifics of the
must give no more information than the lawyer was demand or request for information and the client’s
ordered to reveal and, if appropriate, should consider and response;
be prepared to raise the issue of privilege. ƒ must not disclose confidential information if the
When faced with a subpoena, court order, or some other client cannot be located or refuses to provide
instructions regarding disclosure and, if applicable,
demand or request to divulge or allow access to
should assert privilege on the client’s behalf; and
confidential client information, a lawyer should first
determine whether there is a legal obligation to disclose ƒ must decline to disclose the information if the client
does not authorize disclosure or provides
such information. If unsure, the lawyer should seek legal
instructions to withhold the information.
advice from a lawyer experienced in the relevant area of
law (e.g., criminal law if served with a police search 4.2 Permitted disclosure, to prevent death
warrant or tax law if faced with a demand for information or serious bodily harm — r. 3.3-3 and
from the Canada Revenue Agency). Where a legal commentary
obligation to disclose confidential information does exist, A lawyer may disclose confidential information, but must
the lawyer not disclose more information than is required, where the
ƒ must comply with the statute, court order, or other lawyer believes on reasonable grounds that there is an
demand or request that compels the disclosure of imminent risk of death or serious bodily harm and
confidential information (subject to the obligation disclosure is necessary to prevent the death or harm.
to assert privilege on the client’s behalf); These situations will be extremely rare.
ƒ must reveal only what is legally mandated by the
statute, court order, or demand or request and The Supreme Court of Canada has considered the
nothing more; meaning of the words “serious bodily harm” in certain
contexts, which may inform a lawyer’s assessment of
ƒ if asked to disclose information that is privileged,
must assert privilege on the client’s behalf; whether disclosure of confidential information is
permissible. In Smith v. Jones, the court observed that
ƒ should consider seeking the advice of another
serious psychological harm may constitute serious bodily
lawyer to advise on or make submissions to the
court on the issue of privilege; and harm if it substantially interferes with the health or well­
being of the individual.
ƒ should advise the client of the legal obligation to
disclose the information, what information must be In assessing whether disclosure of confidential
revealed, and the justifying statute, court order, or information is permitted to prevent death or serious
demand or request.
bodily harm, a lawyer should consider a number of factors,
including

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CHAPTER 5 PROFESSIONAL RESPONSIBILITY

ƒ the likelihood that the potential injury will occur and ƒ have committed a criminal offence involving a
its imminence; client’s affairs;
ƒ the apparent absence of any other feasible way to ƒ are civilly liable with respect to a matter involving a
prevent the potential injury; and client’s affairs;
ƒ the circumstances under which the lawyer acquired ƒ have committed acts of professional negligence; or
the information of the client’s intent or prospective ƒ have engaged in acts of professional misconduct or
course of action. conduct unbecoming a lawyer.
For disclosure to be justified, the lawyer must believe, not Disclosure of confidential information in this context is
just suspect, on reasonable grounds, that the death or always limited to what is required to respond to the
harm will happen in the near future and that disclosure is allegations and no more.
necessary to prevent it. Harm that has already happened
would not meet this threshold unless it is reasonably likely 4.4 Permitted disclosure, to establish or
to happen again in the near future. Depending on the collect fees — r. 3.3-5
circumstances, a lawyer who believes that disclosure may A lawyer may disclose confidential information to
be warranted should seek legal advice from an establish or collect fees as long as the lawyer does not
experienced lawyer or contact the Law Society’s Practice disclose more information than is required to do so. If the
Management Helpline. When practicable, a judicial order documents used by a lawyer to establish or collect the fees
may be sought for disclosure. contain confidential information that is not required to
It is important to note that this rule is discretionary and establish or collect the fees, the lawyer must remove or
not mandatory. In other words, if the lawyer concludes block out that information before disclosing those
that the lawyer is permitted to disclose confidential documents.
information under r. 3.3-3, there is still no obligation to
4.5 Permitted disclosure, to secure legal
disclose the confidential information, though the lawyer advice about lawyer’s proposed conduct
may choose to do so. — r. 3.3-6
Where the lawyer has opted to disclose confidential Lawyers may disclose confidential information to another
information under this rule, the lawyer should prepare a lawyer to secure legal advice about their proposed
written note as soon as possible that includes conduct. For example, after reviewing a client’s situation
ƒ the date and time of the communication in which and the Rules, a lawyer may not be certain how to proceed
disclosure is made; in order to comply with the lawyer’s professional
ƒ the grounds in support of the lawyer’s decision to obligations. In such a case, the lawyer may wish to obtain
communicate the information, including the harm the legal opinion of another lawyer. Disclosure of
intended to be prevented, the identity of the person confidential information to the lawyer providing the legal
who prompted communication of the information, as opinion would be permitted in this case.
well as the identity of the person or group of persons
exposed to the harm; and 4.6 Permitted disclosure, to detect and
ƒ the content of the communication, the method of resolve conflicts of interest — r. 3.3-7
communication used, and the identity of the person and commentary
to whom the communication was made. Lawyers in different firms may need to disclose
This rule does not permit disclosure to prevent illegal or information to each other to detect and resolve conflicts of
criminal conduct unless that conduct involves an interest. This may occur, for example, when a lawyer is
imminent risk of death or serious bodily harm, and in that considering employment with another firm, two or more
situation, the decision to disclose remains discretionary. firms are considering a merger, or a lawyer is considering
the purchase of a practice.
4.3 Permitted disclosure, to defend against
allegations — r. 3.3-4 A lawyer may disclose confidential information to the
extent reasonably necessary to detect and resolve conflicts
Lawyers are permitted to disclose confidential
of interest arising from the lawyer’s change of
information in circumstances where an allegation is made
employment or from changes to the composition or
against them or their employees and confidential
ownership of the firm. This type of disclosure would only
information must be revealed in order to defend against
be made once substantive discussions regarding the new
those allegations. In these situations, disclosure is only
relationship have occurred.
permitted if it is alleged that the lawyer or lawyer’s
associates or employees The exchange of information between firms needs to be
done in a manner consistent with the transferring lawyer’s

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CONFIDENTIALITY CHAPTER 5

and the new firm’s obligations to protect client any outside party the organization’s prior, present, or
confidentiality and privilege and to avoid any prejudice to intended dishonest, fraudulent, criminal, or illegal acts,
the client. Accordingly, disclosure should be made to as unless permitted or required to do so by the Rules.
few lawyers at the new law firm as possible; ordinarily, the
disclosure would include no more than the names of the 5.2 Security of court facilities — r. 5.6-3 and
commentary
persons or entities involved in a matter. If disclosure
would compromise client confidentiality or privilege or If a lawyer receives information that leads the lawyer to
otherwise prejudice the client, such disclosure is reasonably believe that a dangerous situation is likely to
prohibited without the client’s consent. Greater detail develop at a court facility, the lawyer must notify and give
regarding the procedures for disclosure in such particulars to the persons having responsibility for
circumstances is set out in the commentary to r. 3.3-7. security at the facility. However, because the lawyer is still
bound by the duty of confidentiality, the lawyer cannot
5. Other obligations related to confidential disclose any further confidential client information
client information
without the client’s consent or determining that the
There are cases where confidential information a lawyer situation falls under the exception to prevent death or
receives during the relationship with the client triggers serious bodily harm. Where possible, the lawyer should
other obligations. Though these obligations are covered suggest solutions, such as added security at the court. To
elsewhere in the Rules and in these Study Materials, they protect client confidentiality, the lawyer may consider
are also subject to the confidentiality rule and have been providing this tip anonymously to the persons responsible
included below. for security at the court facility or through another lawyer
or an agent.
5.1 “Whistle blowing” — rr. 3.2-8 and 3.3-3
and commentaries Where possible, the lawyer should also notify other
licensees who are known to be involved in proceedings at
The lawyer’s duty of confidentiality does not differ when
the court facility where the dangerous situation is likely to
the client is an organization and applies whether the
develop. In addition to warning colleagues, such notice
lawyer is retained as an outside lawyer or employed in-
may allow them to suggest security measures that do not
house by the organization. The duty of confidentiality is
interfere with an accused’s or party’s right to a fair trial.
owed to the organization itself and not to any officer,
employee, or agent communicating on behalf of the 5.3 Duty to report misconduct — rr. 3.3-1(c)
organization unless the lawyer has been retained to act in and 7.1-3 and commentary
a joint retainer with the organization and the individual.
When a lawyer is retained by a client who has dealt with
In that event, the rules regarding joint retainers and
another licensee, professionally or personally, the lawyer
confidentiality apply.
may learn information about the other licensee from the
There are additional obligations when a lawyer is client. If the lawyer has evidence that another licensee was
employed or retained by an organization to act in a matter or is engaged in misconduct as outlined in r. 7.1-3, the
in which the lawyer knows that the organization has lawyer is required to report it to the Law Society unless
engaged in, is engaging in, or intends to engage in conduct doing so would be unlawful or a breach of lawyer-client
that is dishonest, fraudulent, criminal, or illegal. In these privilege. The report must be made without malice or
situations, the lawyer must follow the procedures outlined ulterior motive.
in r. 3.2-8 to advise those responsible for the organization
The obligation to report misconduct applies to the lawyer’s
about the conduct and that the conduct should be stopped.
own conduct as well as that of other licensees. If a lawyer
If the lawyer cannot convince the organization to abandon
has any doubt about whether a report should be made, the
the conduct, the lawyer may be forced to withdraw from
lawyer should consider seeking the advice of the Law
representation. In some cases, withdrawal may include
Society directly (e.g., by contacting the Practice
the lawyer resigning from the lawyer’s position with the
Management Helpline) or indirectly (e.g., through
organization. When a lawyer may or must withdraw is
another licensee).
discussed in greater detail in Chapter 10 (Withdrawal
from representation) of these Study Materials. 6. Prohibited use or disclosure of client
information — commentary, r. 3.3-1
A lawyer may learn of an organization’s misconduct after
receiving confidential information. In such cases, the A lawyer’s duty of loyalty to a client prohibits the lawyer
lawyer must not knowingly assist in or encourage the from using any client information for a purpose other than
misconduct and must follow the steps discussed above. providing legal services to that client in accordance with
However, a lawyer must not disclose to the authorities or the terms of the retainer. During the professional

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CHAPTER 5 PROFESSIONAL RESPONSIBILITY

relationship and after the retainer has ended, lawyers should be mindful of the risk of inadvertent disclosure of
must not use information from one client to disadvantage confidential information and institute systems and
that client, to serve another party, or for their own benefit. procedures that are designed to insulate their respective
This would constitute a breach of the duty of practices. The issue may be heightened if one lawyer in the
confidentiality and could create a conflict of interest as association represents a client on the other side of a
discussed in Chapter 6 (Conflicts of interest) of these dispute with the client of another lawyer in the
Study Materials. association.

6.1 Literary works — r. 3.3-1, commentary These “leaks” of information may have unintended
results: the client may be identified, or other parties may
A lawyer who engages in literary works is prohibited from
learn information that can be used against the client. Even
disclosing confidential client information unless that
in cases where the client cannot be identified, the respect
client or former client consents to the disclosure. This
of the public for the legal professions may be lessened as a
applies to writings and publications of any kind and in any
result of overhearing a lawyer “talk shop” in public.
medium, including a script, article, speech, online journal,
or lawyer’s autobiography or memoirs. The rule applies 6.3 Search of electronic devices containing
regardless of whether the professional relationship has confidential client information
ended or the information is publicly accessible, and is not The duty of confidentiality extends to all information
affected by the length of time since the retainer concluded. concerning the business and affairs of a client regardless
6.2 Discussions within the office and in of where that information is stored (e.g., paper documents
public — r. 3.3-1, commentary located in the lawyer’s office, electronic documents on the
lawyer’s laptop, or electronic messages on the lawyer’s
Lawyers should apply common sense where client
mobile device). When crossing international borders with
information is concerned. Lawyers should never gossip
electronic devices (e.g., laptops, tablets, or mobile
about a client or discuss client matters where the
devices), lawyers may be subject to searches of their
discussion may be overheard or intercepted. Casual
devices that could result in the disclosure of client
conversations regarding clients spoken with the lawyer’s
confidential information, which is a breach of the duty of
spouse or romantic partner or at social events, even with
confidentiality. As a result, lawyers should consider
members of the same firm, should be avoided. Lawyers
developing policies for cross-border travel that outline
should not discuss client matters over a cellphone in
appropriate measures to protect client confidentiality and
public. They should keep client documents and other
should follow appropriate measures to protect
property out of sight and reach of those not entitled to see
confidential information whenever they are travelling
them.
internationally with an electronic device that contains
Sole practitioners who practise in association with other information about the client or the client’s matter.
lawyers or paralegals in cost-sharing, space-sharing, or
other arrangements and lawyers who work remotely

34 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

 Chapter 6
Conflicts of interest

A lawyer must not act or continue to act for a client when Many conflicts arise from the lawyer’s duty to protect
there is a conflict of interest, except as provided in s. 3.4 confidential information and the lawyer’s duty of candour.
of the Rules of Professional Conduct (Rules). The For example, a conflict may arise when the lawyer has
definition of “client” is broad and includes a person who, information from one client that is relevant to another
having consulted with a lawyer, reasonably concludes that client’s or a prospective client’s matter. In this case, the
the lawyer has agreed to render legal services on the lawyer owes a duty to one client not to reveal the
person’s behalf. It also includes any clients of the law firm information (the duty of confidentiality) but owes a duty
in which the lawyer is a partner or associate. This is to the other client or prospective client to disclose the
discussed in more detail in Chapter 3 (Who is the client) information (the duty of candour). Because the lawyer
of these Study Materials. cannot fulfill both duties, the lawyer is in a conflict of
interest.
1. Definition of “conflict of interest” —
rr. 1.1-1 and 3.4-1 and commentary Conflicts of interest may also arise because of the lawyer’s
own interests (financial, personal, or otherwise), which
A conflict of interest exists when there is a substantial risk
may impair client representation and loyalty. This can be
that a lawyer’s loyalty to or representation of a client
reasonably obvious, for example, where a lawyer is asked
would be materially and adversely affected by the lawyer’s
to advise the client in respect of a matter in which the
own interest or the lawyer’s duties to another client, a
lawyer or the lawyer’s partner, associate, or family
former client, or a third person. A client may be unable to
member has a material direct or indirect financial interest.
judge whether the lawyer’s duties have actually been
Other situations may not be so obvious. For example, the
compromised. Even well-intentioned lawyers may not
judgment of a lawyer who has a close personal
realize that performance of their duties has been
relationship, sexual or otherwise, with a client who is in a
compromised. Accordingly, the rule addresses the risk of
family law dispute is likely to be compromised. The
impairment rather than actual impairment. The
relationship may obscure whether certain information
expression “substantial risk” describes the likelihood of
was acquired in the course of the lawyer-client
the impairment, as opposed to its nature or severity. It
relationship and may jeopardize the client’s right to have
must be more than a mere possibility; there must be a
all information concerning the client’s affairs held in strict
genuine, serious risk to the duty of loyalty or to client
confidence. The relationship may in some circumstances
representation. While the risk must be significant and
result in the exploitation of the client by the lawyer.
plausible, it does not need to be certain or probable.
3. Avoiding conflicts of interest — r. 3.4-1
2. Recognizing situations in which
and commentary
conflicts of interest arise — rr. 1.1-1 and
3.4-1 and commentary A lawyer must not act or continue to act for a client where
To avoid a conflict of interest, the lawyer must first there is a conflicting interest, except as permitted under
recognize the circumstances that may present a conflicting s. 3.4 of the Rules. Where a conflict arises that cannot be
interest or later give rise to one. A conflict of interest can resolved, the lawyer may be required to decline a retainer
result from competing or incompatible duties to various from a prospective client or withdraw from a client’s
parties, or competing interests between those parties and ongoing matter. Lawyers must evaluate whether a conflict
the lawyer, that arise during the professional relationship. of interest exists or may develop for every client or
prospective client and every matter that they accept,
The lawyer-client relationship is a fiduciary relationship, considering
and as such, the lawyer has a duty of loyalty to the client.
ƒ the duties owed to the client or prospective client;
The duty of confidentiality, the duty of candour, and the
duty of commitment to the client’s cause are all aspects of ƒ any duties owed to other clients, former clients,
the duty of loyalty. The conflicts-of-interest rules protect prospective clients, or third persons; and
all of these duties from impairment by a conflicting duty ƒ any outside, personal, or financial interests that
or interest. may compete with those duties.
A lawyer should examine whether a conflict of interest
exists not only from the outset but throughout the

35
CHAPTER 6 PROFESSIONAL RESPONSIBILITY

duration of the retainer because new circumstances or Following the required disclosure, the client can decide
information may establish or reveal a conflict of interest whether to give consent (also known as “informed
(e.g., the addition of new parties to a litigation matter). consent”).

4. Dealing with a conflict of interest As important as it is to the client that the lawyer’s
judgment and freedom of action on the client’s behalf not
Although a lawyer has a duty to avoid conflicts of interest,
be subject to other interests, duties, or obligations, in
there are situations where the Rules permit a lawyer to act
practice, this factor may not always be decisive. Instead, it
or continue to act in a matter despite the conflict. In such
may be only one of several factors that the client will weigh
cases, the lawyer must obtain consent from all affected
when deciding whether to give the consent referred to in
clients and must reasonably believe that the lawyer is able
the rule. Other factors might include, for example, the
to represent each client without there being a material
availability of another lawyer of comparable expertise and
adverse effect upon the representation or loyalty to the
experience; the current stage of the matter or proceeding;
other clients. As discussed in more detail below, consent
the extra cost, delay, and inconvenience involved in
must be fully informed and voluntary after disclosure. To
engaging another lawyer; and another lawyer’s
ensure that the client’s consent is informed, genuine, and
unfamiliarity with the client and the client’s affairs.
uncoerced, in some circumstances, the lawyer must or
should recommend that the client receive independent It is important to note that although r. 3.4-2 permits a
legal advice. client to accept the risk of a material adverse effect on a
lawyer’s representation of or loyalty to the client, client
It should be noted that even where the Rules permit the
consent does not permit a lawyer to act where there would
lawyer to obtain the client’s consent to act, there are
be actual impairment rather than merely the risk of
circumstances where it would not be prudent for the
impairment.
lawyer to do so.
A situation may arise where it is impossible for a lawyer to
There are also situations where the lawyer is prohibited
make the full disclosure to a prospective client that is
from acting or continuing to act when a conflict exists or
necessary to obtain the prospective client’s consent for the
has developed and the lawyer may be forced to withdraw
lawyer to act in a matter where there is a conflict. This may
from representing the client.
happen when the details of the conflict involve another
4.1 Consent — rr. 1.1-1 and 3.4-2 and client or former client and the lawyer is precluded from
commentary revealing the information because it is confidential. In this
circumstance, the lawyer must advise the prospective
As noted above, a lawyer may represent clients with a
client that there is a conflict of interest and that the lawyer
conflicting interest if each affected client consents to waive
cannot accept the retainer. Where a conflict emerges
the conflict and the lawyer reasonably concludes that the
during the retainer and the lawyer cannot make full
lawyer is able to represent each client without having a
disclosure to the client to obtain consent, the lawyer must
material adverse effect upon the duties owed to the other
advise the client that there is a conflict of interest and that
client(s). Consent must be given by the client in writing or
the lawyer is required to withdraw from representing the
orally, provided that oral consent is confirmed by way of a
client. In both circumstances, the lawyer is prohibited
written communication from the lawyer to the client as
from disclosing confidential information to explain the
soon as practicable.
nature of the conflict to the client.
As noted above, disclosure is an essential requirement to
4.1.1 Consent in advance — rr. 1.1-1 and
obtaining a client’s consent and arises from the duty of
3.4-2, commentary
candour owed to the client. Disclosure means full and fair
disclosure of all information relevant to a client’s decision A lawyer may be able to request that a client consent in
in sufficient time for the client to make a genuine and advance to conflicts that might arise in the future. The
independent decision and for the taking of reasonable effectiveness of such consent is generally determined by
steps by the lawyer to ensure the client’s understanding of the extent to which the client understands the material
the matters disclosed. The lawyer should, therefore, risks that the consent entails. For this reason, a general
inform the client of the relevant circumstances and the open-ended consent will ordinarily be ineffective as it is
reasonably foreseeable ways that the conflict of interest not reasonably likely that the client understood the
could adversely affect the client’s interests. These would material risks involved. While not a requirement for
include the lawyer’s relations to the parties and any obtaining consent in advance, in certain circumstances, it
interest in or connection with the matter. may be advisable for the lawyer to recommend that the
client obtain independent legal advice before deciding

36 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

CONFLICTS OF INTEREST CHAPTER 6

whether to consent to future conflicts of interest (e.g., client(s). Representing opposing parties in a dispute is a
where the client is an inexperienced user of legal services). stark example of a current client conflict.
As with consent generally, consent in advance must be
Examples of other situations where conflicts of interest
recorded.
involving current clients may or will arise include
4.2 Independent legal advice, independent ƒ acting in a joint retainer where the interests of the
legal representation — r. 1.1-1 and parties diverge;
commentary and r. 3.4-2
ƒ acting for more than one client in separate but
The Rules do not require a lawyer to advise a client to related matters because of the nature of the
obtain advice from an independent lawyer or paralegal retainers; and
regarding all potential conflicts of interest. However, in ƒ acting for clients in unrelated matters where the
some cases, a lawyer in a conflict-of-interest situation duty of confidentiality owed to one client may be
should or must recommend or require that a client obtain inconsistent with the duty of candour owed to
independent legal advice or independent legal another client, depending on whether confidential
information obtained by the lawyer during either
representation before the lawyer may take any further step
retainer is relevant to both retainers.
in the matter. Independent legal advice and independent
legal representation are defined in r. 1.1-1 of the Rules. 5.2 Acting directly adverse to the
immediate legal interests of a current
In general terms, independent legal advice is provided by client
an outside lawyer or paralegal, if appropriate, who is
unrelated to the client’s matter, the client’s lawyer, or A bright-line rule has been developed by the courts to
associated parties and who does not have a conflicting protect the representation of and loyalty to current clients
interest. The role of the outside lawyer or paralegal is (Canadian National Railway Co. v. McKercher LLP). The
limited to providing legal advice that is objective and bright-line rule holds that a lawyer cannot act for a client
unbiased regarding a particular decision that the client is whose interests are directly adverse to the immediate legal
facing so that the client understands the nature and interests of a current client without the clients’ consent.
consequences of the decision to be made. The bright-line rule applies even if the work done for both
clients is completely unrelated. The main areas of
Independent legal representation is a retainer in which the application of the bright-line rule are civil and criminal
retained lawyer or paralegal has no conflict of interest with proceedings.
respect to the client’s matter and acts as the client’s lawyer
or paralegal in respect of that matter. The bright-line rule recognizes that the lawyer-client
relationship may be irreparably damaged where the
4.3 Refuse to act, withdraw from lawyer’s representation of one client is directly adverse to
representation — rr. 3.4-1, 3.4-3, and another client’s immediate legal interests. One client may
3.7-7 legitimately fear that the lawyer will not resolutely pursue
In some cases, the existence of a conflict of interest may the representation out of deference to the other client, and
require the lawyer to decline the retainer at the outset or an existing client may legitimately feel betrayed by the
to terminate the retainer and withdraw from representing lawyer’s representation of a client with adverse legal
the client at a later time. For example, as discussed below, interests. This type of conflict may also arise outside a law
a lawyer must refuse to act when asked to represent more partnership, in situations where sole practitioners who are
than one side of a dispute. in space-sharing associations and otherwise have separate
practices hold themselves out as a law firm and lawyers in
5. Current client conflicts — rr. 3.4-1–3.4- the association represent opposite parties to a dispute.
3 and commentaries
In circumstances where it is unreasonable for a client to
5.1 Disputes between clients expect that the lawyer’s law firm will not act against the
A lawyer must not represent opposing parties in a dispute client in unrelated matters, the bright-line rule does not
even if both parties consent. In a dispute, the parties’ apply. However, a lawyer should understand that there
immediate legal interests are clearly adverse. If the lawyer may be a conflict of interest arising from the duties owed
were permitted to act for opposing parties in such to another current client even if the bright-line rule does
circumstances, even with consent, the lawyer’s advice, not apply. In matters involving another current client,
judgment, and loyalty to one client would be materially lawyers should take care to consider not only whether the
and adversely affected by the same duties to the other bright-line rule applies but also whether a conflict exists
because there is a substantial risk of material impairment
to the lawyer’s duties to either current client.

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CHAPTER 6 PROFESSIONAL RESPONSIBILITY

6. Acting against former clients — rr. 3.4- 7. Joint retainers — rr. 3.4-5–3.4-9 and
10–3.4-11 and commentaries commentaries
Duties owed to a former client can impair client A lawyer may be asked to represent more than one client
representation and loyalty. As the duty of confidentiality in a matter. Acting for joint clients or acting in a joint
continues indefinitely after the retainer is completed, the retainer places the lawyer in a potential conflict of interest.
duty of confidentiality owed to a former client may conflict Lawyers have obligations to all clients, and in a joint
with the duty of candour owed to a current client if retainer, the lawyer must remain loyal and devoted to all
confidential information from the former matter is joint clients equally. Accordingly, before accepting a joint
relevant to the current matter. Lawyers also have a duty retainer, the lawyer should determine if the interests of
not to act against a former client in the same or a related the clients are the same or sufficiently aligned.
matter even where the former client’s confidential
To act in a joint retainer, the lawyer must do the following:
information is not at risk. To determine the existence of a
conflict of interest, a lawyer should consider whether ƒ advise the joint clients of the nature of a joint
representing the current client in a matter includes acting retainer, confidentiality in a joint retainer, and
conflicts of interest that may arise in a joint
against a former client. The Rules prohibit lawyers and
retainer;
their partners or associates from acting against former
clients unless certain criteria are met. ƒ in certain circumstances, recommend that the joint
client(s) obtain independent legal advice prior to
6.1 Same or related matters entering into the joint retainer;
ƒ obtain each joint client’s separate consent in writing
A lawyer must not act against a former client in the same
to enter the joint retainer (or a record of such
matter or a related matter unless the former client consent in a separate written communication to
consents. For example, if a client terminates the retainer each client); and
of a lawyer in the middle of the matter, the lawyer cannot ƒ deal with contentious issues that arise during the
act for another party against the former client in the same joint retainer (such issues potentially creating a
matter or a related matter, unless the former client conflict and necessitating withdrawal).
consents.
Although the Rules may allow a lawyer to act for more
6.2 New matters than one client in a matter, there are circumstances where
the lawyer should not do so. Before agreeing to accept a
A lawyer must not act against a former client in a new joint retainer, the lawyer must carefully evaluate the
matter if the lawyer has relevant confidential information circumstances and determine the likelihood of any
arising from the representation of the former client that possible conflicts. If it is likely that the clients will disagree
may prejudice that client. However, there are exceptions: on some aspects of the matter or if the clients’ concerns,
ƒ The lawyer may act against the former client in a rights, interests, or obligations will diverge as the matter
new matter if the former client consents to the proceeds, the lawyer should decline the joint retainer.
lawyer acting against the former client.
ƒ The lawyer’s partner or associate may act against 7.1 Advice to joint clients, informed consent
the former client in a new matter if the former client — rr. 3.4-5 and 3.4-7 and commentaries
consents to the partner or associate acting against Before accepting a joint retainer, the lawyer must advise
the former client. all prospective joint clients of the following:
ƒ The lawyer’s partner or associate may act against
the former client in a new matter if the law firm ƒ The lawyer has been asked to act for both or all of
establishes that it has taken adequate measures on a them.
timely basis to ensure that there will be no risk of ƒ No information received in connection with the
disclosure of the former client’s confidential matter from one client can be treated as confidential
information to the other lawyer having carriage of so far as any of the other clients are concerned.
the new matter.
ƒ If a conflict develops that cannot be resolved, the
It is not improper for a lawyer to act against a former client lawyer cannot continue to act for both or all of the
in a fresh and independent matter wholly unrelated to any clients and may have to withdraw completely.
work previously done for that client if previously obtained Once the lawyer has advised the prospective joint clients
confidential information is irrelevant to the matter. of the above, if the clients agree to have the lawyer
represent them in a joint retainer, the lawyer must obtain
their informed consent to act. Consent in writing or a
record of the consent in a separate written communication
to each client is required. In some circumstances, to

38 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

CONFLICTS OF INTEREST CHAPTER 6

ensure that consent is informed, genuine, and uncoerced, that may or may not affect the joint retainer. Specifically,
the lawyer should, prior to agreeing to the joint retainer, the Rules advise when these joint retainers are prohibited
recommend that the client(s) obtain independent legal and any exceptions to that prohibition.
advice, particularly where one of the joint clients is less
sophisticated or more vulnerable than the other. 8.1 Joint wills for spouses or partners —
commentary, r. 3.4-5
The lawyer has an additional obligation if the lawyer has a
A lawyer who receives instructions from spouses or
continuing relationship with a client who wants to retain
partners as defined in the Substitute Decisions Act, 1992
the lawyer jointly with another client. Before agreeing to
to prepare one or more wills for them based on their
act in a joint retainer for the ongoing client and the
shared understanding of what is to be in each will should
prospective client in a matter, the lawyer must advise the
treat the matter as a joint retainer and comply with
prospective client of the continuing relationship and must
r. 3.4-5. At the outset of the joint retainer, the lawyer
recommend that the prospective client obtain
should advise the spouses or partners that if one of them
independent legal advice about the joint retainer before
subsequently were to communicate new instructions
consenting to it.
about his or her will (e.g., to change or revoke the will),
7.2 Contentious issues, withdrawal — both of the following would occur:
rr. 3.4-8–3.4-9 and 3.7-8–3.7-9 ƒ The subsequent communication would be treated as
Where a contentious issue arises among some or all of the a request for a new retainer and not as part of the
clients in a joint retainer, the lawyer is typically prohibited joint retainer.
from advising the clients on the issue. However, the lawyer ƒ In accordance with rr. 3.3-1–3.3-6, the lawyer
is permitted to advise one of the joint clients about the would be obliged to hold the subsequent
communication in strict confidence and not disclose
contentious issue and refer the other(s) to other lawyers
it to the other spouse or partner.
for that purpose if all the joint clients agree to this
arrangement. The lawyer should also advise the spouses or partners that
the lawyer would have a duty to decline the new retainer
Where there is a contentious issue between joint clients to change or revoke the will unless the spouses were no
and there is no agreement as to whether the lawyer can longer in a relationship (i.e., the spouses or partners had
advise one of them, the lawyer must refer the joint clients annulled their marriage, divorced, or permanently ended
to other licensees for that purpose. If no legal advice is their conjugal or close personal relationship), the other
required and the clients are sophisticated, the lawyer must spouse or partner had died, or the other spouse or partner
advise them that they have the option to settle the was informed of the subsequent communication and
contentious issue by direct negotiation in which the lawyer agreed to the lawyer acting on the new instructions. After
does not participate. If the clients settle the contentious advising the spouses or partners in the above manner, the
issue, the lawyer may continue to act in the joint retainer. lawyer should obtain their written consent to act.
Where the contentious issue that arose between the joint
8.2 Acting for borrower and lender —
clients cannot be resolved, the lawyer must withdraw from rr. 3.4-12–3.4-16 and commentaries
the joint representation. The lawyer cannot continue to act
for any one of the joint clients, unless the clients agree A lawyer or two or more lawyers practising in partnership
otherwise and such representation is consistent with the or association are prohibited from representing both the
lawyer’s duty to avoid conflicts of interest. If the lawyer is borrower and lender in a mortgage or loan transaction,
required to withdraw, the lawyer must do so in accordance except in limited situations and where certain conditions
with rr. 3.7-8–3.7-9. A lawyer’s duties to a client upon are met. A lawyer may act for or otherwise represent a
withdrawal are discussed in Chapter 10 (Withdrawal from lender and borrower in a mortgage or loan transaction in
representation) of these Study Materials. any of the following circumstances:
ƒ The lender is a “lending client,” which means
8. Joint retainers in estate and real estate
matters — a bank, trust company, insurance company, or
credit union;
The Rules provide additional guidance regarding joint
— a finance company (including any subsidiaries)
retainers as they occur in certain estate and real estate that is a corporation or partnership
matters. Typically, these are retainers in which the joint
y whose material business involves making
clients share a primary common interest (e.g., the
or refinancing loans or entering into other
successful transfer of title in real property from one client similar arrangements for advancing funds
to another) but may have differing secondary interests or credit; and

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CHAPTER 6 PROFESSIONAL RESPONSIBILITY

y whose shares or ownership interests (or generally sophisticated and provide their consent to and
another person or entity with which it is acknowledgment of the terms of the joint retainer in the
affiliated) are listed on a stock exchange documentation for the transaction (e.g., mortgage loan
within or outside Canada that is a
designated stock exchange for the instructions). However, the lawyer must still fulfill these
purposes of the Income Tax Act (Canada); obligations to the borrower client in respect of the joint
retainer.
— a mortgage investment company that satisfies
the finance company criteria outlined above; Before the advance or release of mortgage or loan funds,
— a corporation or partnership designated as an the lawyer who acts jointly for both borrower and lender
approved lender under the National Housing must disclose to both the borrower and lender, in writing
Act (Canada); and all material information that is relevant to the transaction.
— a Community Futures Development What is material information should be determined
Corporation, a federal or provincial crown objectively and includes any facts that a reasonable
corporation or a corporation or agency borrower or lender might consider relevant. This duty to
affiliated with or funded by such a corporation,
disclose arises even if neither joint client asks for the
or a municipality or an agency affiliated with
or funded by a municipality. information.

ƒ The lender is selling real property to the borrower, A lawyer who agrees to act for both lender and borrower
and the mortgage represents part of the purchase in a mortgage transaction has the same obligations to
price (“vendor take-back mortgage” situation). these joint clients as in any other joint retainer. Should a
ƒ The lawyer practises in a remote location where borrower demand that the lawyer not disclose relevant
there are no other lawyers that either party could information to the lender or insist on providing
conveniently retain for the mortgage or loan instructions that conflict with the lawyer’s duties to the
transaction.
lender, the lawyer may be forced to withdraw from acting
ƒ The consideration for the mortgage or loan does not in the mortgage transaction.
exceed $75,000.
ƒ The lender and borrower are not at “arm’s length” 8.3 Acting for transferor and transferee —
as defined in s. 251 of the Income Tax Act. rr. 3.4-16.7–3.4-16.9

If none of these exceptions apply, neither the lawyer nor Generally, the Rules require that there be two lawyers for
the lawyer’s firm are permitted to represent both borrower transfers of title to real property: one for the transferor
and lender. Apart from the lending-client exception, if a and one for the transferee. Unlike the prohibition against
lawyer determines that one of the other limited, defined acting for both borrower and lender, a law firm with two
circumstances applies and the lawyer intends to accept the or more lawyers may represent both transferor and
joint retainer, the lawyer must comply with all the other transferee in the transfer of title to real property so long as
provisions of the joint retainer rule in rr. 3.4-5–3.4-9. the transferor and transferee are represented by different
lawyers in the firm and the general rules on the avoidance
Where a lawyer is jointly retained by a client and a lending of conflicts of interest are observed. If the lawyers practise
client in respect of a mortgage or loan (including any in the same firm, the retainer is a joint retainer.
guarantee of that mortgage or loan) from the lending
client to the other client, the lending client’s consent to act There are exceptions to this two-lawyer rule. Provided that
is deemed to exist upon the lawyer’s receipt of written there is no violation of s. 3.4, one lawyer may represent
instructions from the lending client, and the lawyer is not both transferee and transferor in the transfer of title to
required to real property if

ƒ advise the lending client of the nature of a joint ƒ the Land Registration Reform Act permits the
retainer, confidentiality in a joint retainer, and lawyer to sign the transfer on behalf of the
conflicts of interest that may arise in a joint transferor and transferee (e.g., transfers where the
retainer; transferor and transferee are the same and the
transfer is being made to effect a change in legal
ƒ if the borrower is a continuing client, recommend tenure or to effect a severance of land);
that the lending client obtain independent legal
advice prior to entering into the joint retainer; or ƒ the transferor and transferee are “related persons”
as defined in s. 251 of the Income Tax Act; or
ƒ obtain the lending client’s consent, in writing or
confirmed in writing, to enter into the joint retainer ƒ the lawyer practises law in a remote location where
unless the lending client requires this. there are no other lawyers whom either the
transferor or the transferee could retain for the
This is intended to simplify the advice and consent process transfer without undue inconvenience.
between a lawyer and institutional lender clients, who are

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CONFLICTS OF INTEREST CHAPTER 6

Even if a lawyer is permitted to act for both parties and the be required to perform a conflicts check (e.g., by using a
clients consent, a lawyer should use care in accepting such conflicts-checking system, manual or computerized, to
joint retainers. Lawyers should avoid acting for more than screen for conflicts).
one client when it is likely that a contentious issue will
As well, a lawyer is disqualified from advising or acting for
arise or when the clients’ interests, rights, or obligations
a short-term client where the lawyer has actual knowledge
will diverge as the matter progresses. The probability of a
of a conflict of interest. In the provision of short-term legal
conflict of interest arising between a transferor and
services, the lawyer’s knowledge of a conflict of interest is
transferee in a real estate transaction is high. The interests
based on the lawyer’s reasonable recollection and the
of each of these clients will likely differ, and the advice the
information provided by the short-term client in the
lawyer would give to each would likely not be the same and
ordinary course of consulting with the short-term
may even conflict. If an unexpected conflict between the
provider regarding such services. Where there is a
parties were to arise on the date of closing and the lawyer
disqualifying conflict of interest, the lawyer must decline
is forced to withdraw, there may be insufficient time for
or cease to act for the short-term client as soon as the
each of the parties to retain separate lawyers, and their
lawyer actually becomes aware of the conflict. In such
rights may be prejudiced. All of these potential issues
cases, the lawyer must not seek the short-term client’s
should be considered prior to accepting the joint retainer.
waiver of the conflict.
9. Pro bono and other short-term legal
10. Transfers between law firms — rr. 3.4-
services — rr. 3.4-16.2–3.4-16.6 and
17–3.4-23 and commentaries
commentary
The duty to protect confidential information may also lead
To serve the public interest and the administration of
to a conflict of interest when a lawyer transfers from one
justice, the Rules modify the standard for conflicts of
law firm to another.
interest for lawyers offering pro bono and other short-
term legal services. “Short-term legal services” means The rule regarding conflicts from transfers between law
legal advice or representation to a short-term client firms applies when a lawyer transfers from one law firm
provided through a short-term provider (i.e., a pro bono (former law firm) to another (new law firm) and
or not-for-profit legal services provider that provides
ƒ the transferring lawyer or the new law firm is aware
clients with lawyers for legal advice or representation) at the time of the transfer or later discovers that it is
with the expectation that the lawyer will not deliver reasonable to believe the transferring lawyer has
continuing legal advice or representation to the client in confidential information relevant to the new law
the matter. firm’s matter for its client; or

The Rules permit a lawyer to provide short-term legal ƒ the transferring lawyer or the new law firm is aware
at the time of the transfer or later discovers that
services to a client without taking steps to determine
whether there is a conflict of interest arising from duties — the new law firm represents a client in a matter
that is the same as or related to a matter in
owed to current or former clients of the lawyer, the
which the former law firm currently represents
lawyer’s firm, or the short-term provider. Confidential or previously represented its client;
information obtained by a lawyer representing a short-
— the interests of those clients in that matter
term client is not imputed to other licensees in the lawyer’s
conflict; and
firm. Thus, these other licensees can act or continue to act
for a client adverse in interest to the short-term client. — the transferring lawyer actually possesses
relevant information respecting that matter.
Accordingly, lawyers providing short-term legal services
must take reasonable steps to ensure the short-term These rules address the risk that confidential information
client’s confidential information is not disclosed to other about a client or former client from the transferring
members of the lawyer’s firm. The standard for conflicts lawyer’s former law firm may be revealed to lawyers at the
of interest in this context is adjusted to facilitate new law firm and used against that client. The Rules set
convenient access to justice by those self-represented out the steps that must be taken to avoid this disclosure.
litigants in need of the immediate services offered by these Taking these steps may allow the new law firm to continue
programs. to represent its own client. If the requirements of the Rules
cannot be satisfied, the new law firm must withdraw from
However, where the lawyer and the short-term client representing its client.
agree that the lawyer may utilize the resources of the
lawyer’s firm, including other lawyers, for the benefit of Because the definition of “lawyer” in the Rules includes a
the short-term client, then the short-term client would be candidate enrolled in the Law Society’s licensing process,
deemed a client of the lawyer’s firm, and the lawyer would the rules concerning conflicts from transfers between law

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CHAPTER 6 PROFESSIONAL RESPONSIBILITY

firms apply equally to licensing candidates who transfer ƒ participate in any manner in the new law firm’s
from one firm to another. These rules also apply to lawyers representation of its client in that matter; or
transferring to or from government service or into and out ƒ disclose any confidential information respecting the
of an in-house counsel position. However, the rules do not former client except as permitted by r. 3.3-7, which
apply to purely internal transfers in which, after the authorizes the disclosure of confidential
information to detect and resolve conflicts of
transfer, the employer remains the same. For example, a
interest when lawyers transfer between firms.
lawyer employed by the federal, a provincial, or a
territorial government who, after transferring from one Further, unless the former client consents, no member of
department, ministry, or agency to another, continues to the new law firm may discuss with the transferring lawyer
be employed by that government. the new law firm’s representation of its client in that
matter or the former law firm’s representation of the
10.1 Law firm disqualification — r. 3.4-20 former client in the matter, except as permitted by
and commentary r. 3.3-7.
Where the transferring lawyer actually possesses
10.3 Lawyer due diligence for non-lawyer
confidential information relevant to a matter respecting staff — r. 3.4-23 and commentary
the former client that may prejudice the former client if it
were disclosed to a member of the new law firm, the new A transferring lawyer and members of the new law firm
law firm must withdraw from representing its client in are required to exercise due diligence in ensuring that
that matter unless each member and employee of the new law firm (both
lawyer and non-lawyer) and all other persons whose
ƒ the former client consents to the new law firm’s services the transferring lawyer or new law firm retains
continued representation of its client; or
comply with the rule regarding conflicts from transfers
ƒ the new law firm has between law firms and do not disclose confidential
— taken reasonable measures to ensure that there information of clients of the firm and confidential
will be no disclosure of the former client’s information of clients of another firm in which that person
confidential information by the transferring has worked.
lawyer to any member of the new law firm; and
— advised the transferring lawyer’s former client, 11. Transactions with clients — rr. 3.4-27–
if requested by the former client, of the 3.4-28
measures taken.
The Rules impose restrictions on lawyers’ ability to enter
The purpose of this rule is to deal with actual knowledge. into transactions with clients. A “transaction with a client”
Imputed knowledge does not give rise to disqualification. is defined in the Rules as a transaction to which a lawyer
It is not possible to provide a set of “reasonable measures” and a client of the lawyer are parties, whether or not other
that will be appropriate or adequate in every case. Instead, persons are also parties, including
the new law firm that seeks to implement reasonable ƒ lending or borrowing money;
measures must exercise professional judgment in ƒ buying or selling property or services having other
determining what steps must be taken to ensure that no than nominal value;
disclosure of the former client’s confidential information ƒ giving or acquiring ownership, security, or other
will occur to any member of the new law firm. Such pecuniary interest in a company or other entity;
measures may include timely and properly constructed
ƒ recommending an investment; or
confidentiality screens.
ƒ entering into a common business venture.
The commentary following r. 3.4-20 contains guidelines
In circumstances where the Rules permit the lawyer to
for insulating or screening the transferring lawyer to
enter into transactions with clients, lawyers may only do
ensure that disclosure of confidential information is
so if the transaction is fair and reasonable to the client.
avoided. The commentary also provides guidance on the
process for determining if conflicts of interest exist before 11.1 Borrowing from clients — rr. 3.4-27 and
hiring a potential transferring lawyer. 3.4-28.1

10.2 Transferring lawyer disqualification — A lawyer is prohibited from borrowing from a client except
rr. 3.4-21–3.4-22 where the client is a regulated lender or a related person.
A “regulated lender” is defined as a
Unless the former client consents, a transferring lawyer
shall not ƒ bank;
ƒ trust company;

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CONFLICTS OF INTEREST CHAPTER 6

ƒ insurance company; ƒ If a lawyer lends money to a client who is not a

ƒ credit union; or related person, the lawyer must require that the
client receive independent legal representation.
ƒ finance company
ƒ If a lawyer lends money to a client who is a related
that lends money in the ordinary course of business. person, the lawyer must require that the client
receive independent legal advice.
A “related person” means
ƒ If a lawyer borrows money from a client who is a
ƒ a spouse, child, grandparent, parent, or sibling of regulated lender, the lawyer need not recommend
the lawyer; independent legal advice or independent legal
ƒ a corporation that is owned or controlled directly or representation.
indirectly by the lawyer or that is owned or ƒ If a corporation, syndicate, or partnership borrows
controlled directly or indirectly by the lawyer’s money from a client of the lawyer and either the
spouse, child, grandparent, parent, or sibling; or lawyer or the lawyer’s spouse has a direct or indirect
ƒ an associate or partner of the lawyer. substantial interest in the corporation, syndicate, or
partnership, the lawyer must require that the client
11.2 Indirect transactions — r. 3.4-28.2 and receive independent legal representation.
commentary ƒ In all other cases, the lawyer must recommend that
Lawyers are prohibited from circumventing the Rules by the client receive independent legal advice. If the
circumstances reasonably require, the lawyer must
doing indirectly what they cannot do directly.
recommend or require that the client receive
Transactions between a client and (a) a related person to independent legal representation.
the lawyer, (b) a trust or estate for which a lawyer is a
Before proceeding with the transaction, the lawyer must
beneficiary, or (c) a trust or estate for which the lawyer
obtain the client’s consent after the client receives
acts as both trustee and lawyer will ordinarily be treated
disclosure of any conflicting interest and any independent
as if the lawyer is a party to the transaction. However,
legal advice or representation that may be required. A
where the transaction is truly independent of the lawyer,
lawyer retained to provide independent legal advice
the transaction would be outside the scope of this rule.
relating to a transaction should document the
11.3 Requirements for permissible independent legal advice by providing the client with a
transactions with clients — rr. 3.4-28, written certificate that certifies the client has received
3.4-29, and commentaries independent legal advice, obtaining the client’s signature
As indicated, a lawyer must not enter into a transaction on a copy of the certificate, and providing the signed copy
with a client unless the transaction is permitted under the of the certificate to the lawyer who wishes to transact
Rules and is fair and reasonable to the client. Since the business with the client. If a client declines the
relationship between a lawyer and client is a fiduciary one, recommendation to obtain independent legal advice or
a lawyer has a duty to act in good faith. A lawyer should be independent legal representation, the lawyer should
able to demonstrate that the transaction with the client is obtain the client’s signature on a document indicating that
fair and reasonable to the client. In permissible lawyer- the client has declined the advice or representation.
client transactions, the lawyer must do the following in
11.4 Lawyers in mortgage or loan
sequence: transactions — r. 3.4-27, r. 3.4-33.1 and
ƒ disclose the nature of any conflicting interest or how commentary, and rr. 3.4-33.2–3.4-33.3
and why it might develop later; The Rules prohibit a lawyer in private practice in Ontario
ƒ depending on who the client is and the nature of the from engaging in certain mortgage or loan transactions
transaction, either require or recommend to the that involve clients, investors, and other persons.
client independent legal advice or independent legal
Specifically, a lawyer shall not
representation; and
ƒ obtain the client’s consent to the transaction. ƒ except with the skill, competence, and integrity
usually expected of a lawyer in dealing with clients,
11.3.1 Independent legal advice, sell or arrange for clients or other persons
independent legal representation, mortgages or loans;
and consent — r. 3.4-29 ƒ arrange or recommend that a client or other person
participate as an investor in a syndicated mortgage
Whether independent legal advice or independent legal
or loan where the lawyer is an investor, unless the
representation is required will vary based on the client and lawyer can demonstrate that the client or other
the nature of the transaction: person had independent legal advice regarding the
investment; or

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CHAPTER 6 PROFESSIONAL RESPONSIBILITY

ƒ hold a syndicated mortgage or loan in trust for has a direct or indirect financial interest (other than an
investor clients unless each investor client receives a ownership interest of less than 5% of any class of securities
complete reporting letter on the transaction, a copy of a corporation or other entity offering its securities to the
of the duplicate registered mortgage or security
instrument, and a trust declaration signed by the public).
person in whose name the mortgage or security
11.5 Acting for clients in transactions with
instrument is registered.
clients — r. 3.4-29, commentary [2]
The term “syndicated mortgage” is defined in r. 3.4-27 of
In some circumstances, a lawyer may be retained to
the Rules as a mortgage having more than one investor.
provide legal services for a transaction in which both the
A lawyer is prohibited from engaging in the above lawyer and a client participate. The lawyer should not
mortgage or loan transactions directly or indirectly uncritically accept a client’s decision to have the lawyer
through a corporation, syndicate, partnership, trust, or act. It should be borne in mind that, if the lawyer accepts
other entity in which the lawyer or a related person has a the retainer, the lawyer’s first duty will be to the client. If
financial interest, other than an ownership interest of less the lawyer has any misgivings about being able to place the
than 5% of any class of securities of a corporation or other client’s interests first, the lawyer should decline the
entity offering its securities to the public. retainer. This is because pursuant to rr. 3.4-1–3.4-2, the
lawyer cannot act in a transaction with a client where there
The commentary to the rule outlines acceptable mortgage
is a substantial risk that the lawyer’s duty of loyalty to or
or loan transactions related to the practice of law that the
representation of the client would be materially and
lawyer may engage in. In general terms, these include
adversely affected by the lawyer’s own interest, unless the
introducing borrowers to lenders (whether or not they are
client consents and the lawyer reasonably believes that the
clients); collecting, on a client’s behalf, mortgage or loan
lawyer is able to act for the client without having a material
payments that are made payable to the lawyer under a
adverse effect on the lawyer’s duties to the client.
written direction from the client and are deposited into the
lawyer’s trust account; investing in mortgages or loans 11.6 Payment for legal services – r. 3.4-36
personally and/or on behalf of a related person; or dealing
in mortgages or loans as an executor, administrator, Where a client intends to pay the lawyer for legal services
committee, or trustee of a trust established for purposes by transferring a share, participation, or other interest in
other than a mortgage or loan investment. property or an enterprise, other than a non-material
interest in a publicly traded company, the lawyer must
Lending money to clients may result in a personal conflict recommend, but need not require, that the client receive
of interest (i.e., the lawyer’s financial interest versus the independent legal advice before accepting the retainer.
client’s interests), particularly if the loan goes into default
either during or after the retainer. As outlined in rr. 3.4­ 11.7 Guaranteeing debts — rr. 3.4-34–3.4-35
27–3.4-29, if a lawyer lends money to a client who is not Lawyers must not personally guarantee or provide any
related to the lawyer, then before agreeing to make the security for debts where a client is the borrower or lender
loan, the lawyer must ensure the loan is fair and unless one of the following exceptions applies:
reasonable to the client, disclose and explain the nature of
the conflicting interest to the client, require that the client ƒ The lender is directly or indirectly providing funds
solely for the lawyer or the lawyer’s spouse, parent,
receive independent legal representation, and obtain the or child, and the lender is
client’s consent. The terms of any such loan should be
— a lending institution or financial institution;
clear and reduced to writing.
— an insurance company or trust company; or
Where a lawyer sells or arranges mortgages (with the
— any similar corporation whose business
appropriate skill, competence, and integrity) for clients or
includes lending money to members of the
other persons, the lawyer must disclose in writing to each public.
client or other person the priority of the mortgage and all
ƒ The transaction is for the benefit of a non-profit or
other information relevant to the transaction that is
charitable institution where the lawyer, as a
known to the lawyer and that would pose a concern to a member or supporter of the institution, is asked,
proposed investor. either individually or together with other members
or supporters, to provide a guarantee.
A lawyer must not promote, by advertising or otherwise,
individual or joint investments by clients or other persons ƒ The lawyer has entered into a business venture with
a client, the lender requires personal guarantees
with money to lend in any mortgage in which the lawyer,
from all participants in the venture as a matter of
a related person, or a corporation, syndicate, partnership, course, and both of the following have occurred:
trust or other entity in which the lawyer or related person

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CONFLICTS OF INTEREST CHAPTER 6

— The lawyer has complied with the Rules lawyers and the non-legal services of the affiliated entity.
regarding the avoidance of conflicts of interest, A lawyer in an affiliation must establish a system to search
particularly those relating to transactions with for conflicts of interest of the affiliation and check for
clients.
conflicts as if the lawyer’s practice and that of the affiliated
— The lender and the venture participants who entity were one. Because of the risk of conflicts of interest
are or were clients of the lawyer have
in this type of practice arrangement, lawyers who offer
independent legal representation.
legal services to clients jointly with the non-legal services
Before agreeing to personally guarantee any debt of an affiliated entity have special obligations. Before
involving clients, lawyers should carefully review the accepting a retainer to provide joint services to a client, the
Rules to ensure they meet their obligations. lawyer in the affiliation must disclose to the client
12. Other conflicts of interest ƒ any possible loss of lawyer-client privilege because
of the involvement of the affiliated entity, including
12.1 Personal relationships — commentary, circumstances where non-lawyers or non-lawyer
r. 3.4-1 staff of the affiliated entity provide services,
including support services, in the lawyer’s office;
Though a lawyer is not precluded from acting for a friend
or relative, pro bono or otherwise, the existing personal ƒ the lawyer’s role in providing legal or non-legal
services or both;
relationship may impair the lawyer’s duties to the client.
If the lawyer cannot fulfill the duty to provide objective ƒ any financial, economic, or other arrangements
and disinterested advice because of personal feelings or between the lawyer and the affiliated entity that
may affect the independence of the lawyer’s
history, the lawyer should decline to act for such a client.
representation of the client, including whether the
Conflicts of interest may also arise when a lawyer has a lawyer shares in the affiliated entity’s revenues,
sexual or intimate personal relationship with a client. profits, or cash flows; and
Problems may arise because emotional or psychological ƒ agreements between the lawyer and the affiliated
influences can affect the lawyer’s ability to consider only entity that may affect the independence of the
the client’s interests, which should be separate and apart lawyer’s representation of the client, including
referral agreements.
from the lawyer’s own interests. To determine whether
there is a conflict, the lawyer should consider the client’s After making such disclosure and before accepting the
vulnerability, whether the lawyer can meet his or her duty retainer, the lawyer must obtain the client’s consent to act.
of loyalty to the client, and whether the personal Lawyers who practise law or provide legal services
relationship will obscure what information is confidential through a multi-discipline practice or a multi-discipline
or covered by privilege. The lawyer should also consider partnership must ensure that non-licensee partners and
the likelihood that the lawyer will be required to act as a associates abide by the rules regarding conflicts of interest
witness in the client’s matter. Lawyers should avoid acting since they apply to the legal practice and to the other non­
for persons to whom they have close emotional ties if they legal business of the practice. This means that the lawyers
are unable to meet their obligations in this regard. and non-licensee partners and associates must avoid or
If the lawyer is a member of a firm and concludes that a deal with conflicts as they relate to all clients, whether the
conflicting personal interest exists, then that conflict is not client consults the practice for a legal or non-legal matter
imputed to the lawyer’s firm. Therefore, another lawyer at or both.
the firm who is not involved in such a relationship with the Lawyers who provide legal services to clients through a
client may be retained to handle the client’s matter so long civil society organization (CSO) must establish a system to
as the conflicted lawyer has no involvement in the client identify conflicts of interest of the CSO in order to comply
matter. with their obligation to avoid conflicts of interest.
12.2 Affiliations, multi-discipline practices, 12.3 Outside interests and public office —
and civil society organizations — ss. 7.3 and 7.4
commentary, rr. 3.1-2, 3.4-11.1–3.4-
11.3 and commentary, and rr. 3.4-16.1– As discussed elsewhere in these Study Materials, the Rules
3.4-16.1.1 recognize that lawyers may engage in outside interests
The general conflict of interest rules apply equally to that may or may not be related to the practice of law or the
affiliations. Under the Rules, “affiliation” is defined as the provision of legal services. The term “outside interest”
joining on a regular basis of a lawyer or group of lawyers covers a wide range of activities including, for example,
with an affiliated entity in the delivery or promotion and holding an elected or appointed position in public office,
delivery of the legal services of the lawyer or group of engaging in a mortgage business, acting as a director of a

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CHAPTER 6 PROFESSIONAL RESPONSIBILITY

corporation, writing on legal subjects, or pursuing a ƒ deposit with the court the lawyer’s own money or
concurrent career in business, politics, broadcasting, or the money of any firm in which the lawyer is a
the performing arts. partner to secure the accused’s release;
ƒ deposit with the court any other valuable security to
While lawyers are permitted to engage in a range of secure the accused’s release; or
outside activities, lawyers must not allow such interests to
ƒ act in a supervisory capacity to the accused.
jeopardize their professional integrity, independence, or
competence. A lawyer must not carry on, manage, or be A lawyer may do such things, however, if the accused is in
involved in any outside interest in such a way that makes a family relationship with the lawyer and the accused is
it difficult to distinguish in which capacity the lawyer is represented by the lawyer’s partner or associate. Even in
acting or that would give rise to a conflict of interest. these circumstances, however, the lawyer must consider
Whatever the outside interest, lawyers should be mindful the likelihood of any personal conflicts of interest.
of potential conflicts of interest and the standards referred If the lawyer were to act as a surety for the accused and/or
to in the conflicts-of-interest rule and disclose any had deposited the lawyer’s own money or property with
personal interest. Depending on the circumstances, to the court and learned that the client may breach the
avoid a conflict of interest, the lawyer may need to conditions of the interim release, the lawyer’s interests
disengage from the outside interest, decline to act for the would conflict with those of the client (i.e., the lawyer’s
client, or where appropriate, obtain the client’s informed money or property may be at risk due to the client’s
consent to act. The nature of the outside interest, the client conduct). If the lawyer were to act in a supervisory
matter, and the conflict will dictate what actions are capacity as described above, the lawyer would be at risk of
appropriate to avoid or resolve the conflict. becoming a witness to the client’s conduct. This would
restrict the lawyer’s ability to represent the client going
12.4 Gifts and testamentary instruments —
rr. 3.4-38–3.4-39 forward, as discussed in Chapter 12 (Advocacy) of these
Study Materials.
The Rules set out two additional situations in the context
of estates law that would result in a conflict of interest. The 12.6 Unrepresented persons — r. 7.2-9
first occurs when a will contains a clause that states that
As discussed previously in these Study Materials, lawyers
the lawyer who drafted the will must be retained to
have a special responsibility when acting for a client in a
provide services in the administration of the estate. In
matter where an opposing or other party is unrepresented.
such cases, before accepting the retainer, the lawyer
The lawyer must take care to see that the unrepresented
should provide the trustees with advice in writing that the
person is not proceeding under the impression that the
clause is a non-binding direction and the trustees can
unrepresented person’s interests will be protected by the
decide to retain other counsel. The second situation is one
lawyer and that the unrepresented person understands
in which a client requests that a lawyer prepare a will
that the lawyer is acting exclusively in the interests of the
giving the lawyer or the lawyer’s partner or associate a gift
lawyer’s own client. The purpose of this rule is to ensure
or benefit from the client. Unless the client is a family
that the unrepresented person does not mistakenly believe
member of the lawyer or the lawyer’s partner or associate,
that the lawyer is acting for the unrepresented person.
a lawyer must not prepare or cause to be prepared such a
Following the rule allows the lawyer to avoid any potential
testamentary instrument. Even where the client is a family
conflict of interest or the appearance of one that could
member of the lawyer or the lawyer’s partner or associate,
result if such a mistaken belief arose. For further
the lawyer should carefully consider whether it is
information on r. 7.2-9, see Chapter 3 of these Study
appropriate to accept such a retainer after having carefully
Materials.
considered any personal conflicts of interest that may
arise from providing legal services to such individuals. 13. Conflicts-checking systems

12.5 Judicial interim release — rr. 3.4-40– Conflicts of interest may arise at any time. To fulfill their
3.4-41 duty to avoid conflicts, lawyers should use and maintain
an up-to-date database against which the names (and
Lawyers who act for accused persons in criminal matters
former names and aliases) of all clients, prospective
may be asked to assist the accused with the accused’s
clients, and adverse and associated parties are checked.
release from custody. While facilitating an accused’s
Every time a prospective client contacts or consults with
release from custody may be part of the lawyer’s
the lawyer, all names and matter information should be
professional role, in respect of any accused person for
recorded in the database. The lawyer should perform a
whom the lawyer acts, a lawyer must not
preliminary conflicts check before the initial consultation
ƒ act as a surety for the accused; with the prospective client and before any confidential

46 LAW SOCIETY OF ONTARIO: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

CONFLICTS OF INTEREST CHAPTER 6

information is provided. The lawyer should check again whenever a new lawyer joins the firm. More information
after the initial consultation and before accepting the on conflicts-checking systems can be found in Chapter 13
retainer. Another conflicts check should be made each (Practice management) of these Study Materials.
time a new person becomes involved in the matter or

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 Chapter 7
Duty to the client

The Rules of Professional Conduct (Rules) outline the Because the lawyer-client relationship is a fiduciary one
lawyer’s professional responsibilities to many parties: the and exists for the benefit of the client, lawyers must ensure
client, other licensees, the Law Society of Ontario, and the that they meet the minimum standard of competence
administration of justice itself. Though it may be affected expected of them. Generally, lawyers are required to
by duties to other parties, the duty to the lawyer’s client is
ƒ be honest and candid with the client, informing the
one of the lawyer’s most important responsibilities. client of any information known to the lawyer that
Client-related duties that are discussed elsewhere in these may affect the client’s interest in the matter;
Study Materials include the obligation to ƒ protect the client’s information by keeping client
ƒ provide competent service to the client; information confidential (discussed in greater detail
in Chapter 5 (Confidentiality) of these Study
ƒ safeguard confidential client information; Materials);
ƒ avoid conflicts of interest; ƒ avoid conflicts of interest (discussed in greater
ƒ charge fair and reasonable fees for services; detail in Chapter 6 (Conflicts of interest) of these
Study Materials); and
ƒ withdraw from representation in certain limited
circumstances; and ƒ protect the client’s interests and right to choose
whom to retain when the lawyer decides to leave a
ƒ manage the client relationship and client
law firm and practise elsewhere (discussed in
expectations through proper communication.
greater detail in Chapter 10 (Withdrawal from
This chapter will focus on the following duties to the representation) of these Study Materials).
client:
2. Duties when advising clients
ƒ duties that relate to the fiduciary relationship with
the client; The Rules establish the minimum standard of competence
expected of the lawyer as a fiduciary. Duties that the
ƒ obligation to appropriately advise the client;
lawyer must fulfill when advising clients, which are
ƒ duties that relate to title insurance and mortgage detailed in this section, relate to
transactions; and
ƒ responsibility to protect client funds and property. ƒ honesty and candour;
ƒ refraining from assisting or encouraging a client in
1. The lawyer as a fiduciary any dishonesty, fraud, crime, or illegal conduct;
The lawyer-client relationship is ƒ encouraging compromise or settlement;
ƒ a fiduciary relationship, a relationship of trust, in ƒ abstaining from threatening penal or regulatory
which the lawyer acts on behalf of and in confidence proceedings without reasonable and lawful
for the client; justification;
ƒ an agency relationship in which the lawyer is an ƒ acting appropriately with clients with diminished
agent for the client; capacity;
ƒ a business or contractual relationship where the ƒ dealing with clients under duress or undue
lawyer and client have entered into an agreement influence;
for legal services; and ƒ properly handling medical-legal reports;
ƒ a professional relationship where the lawyer’s ƒ advising on title insurance in real estate
dealings with the client are subject to the Rules. conveyancing;
Though all of these relationships are essential, the most ƒ reporting on mortgage transactions;
important duties to the client arise from the lawyer’s role ƒ handling errors and omissions; and
as the client’s fiduciary. A fiduciary is a person who must
ƒ advising on official language rights.
act for another person with total trust, good faith, and
honesty. In the lawyer-client relationship, the lawyer is the 2.1 Honesty and candour — rr. 3.1-2 and
fiduciary, and the client is the beneficiary. As a fiduciary, 3.2-2 and commentary
the lawyer must put the needs of the client before the
Lawyers must be honest and candid when advising clients
lawyer’s own. on matters relevant to the retainer. This duty requires the

49
CHAPTER 7 PROFESSIONAL RESPONSIBILITY

lawyer to inform the client of information known to the avoid unwittingly becoming involved in dishonest,
lawyer that may affect the interests of the client in the fraudulent, criminal, or other illegal conduct, lawyers
matter. must make reasonable efforts to ascertain the purpose and
objectives of the retainer and obtain information about the
A lawyer must provide the client with a legal opinion
client. Lawyers should record the results of these
regarding the options, possible outcomes, and/or risks of
inquiries. Lawyers should also be on guard against
the matter so the client is able to make informed decisions
becoming the tool or dupe of an unscrupulous client,
and give the lawyer appropriate instructions. Fulfillment
associates of the client, or any other person. For example,
of this professional responsibility may require a difficult
a lawyer is prohibited from accepting funds that the lawyer
but necessary conversation with a client and/or delivery of
knows were gained through illegal means.
bad news. It can be helpful for advice that is not well-
received by the client to be given or confirmed by the The lawyer has additional obligations when the proposed
lawyer in writing. or actual misconduct involves a client that is an
organization. A lawyer who learns that the organization
A lawyer should only provide a legal opinion to a client
has acted, is acting, or intends to act dishonestly,
when it is the legal opinion that the lawyer holds and it is
fraudulently, criminally, or illegally with respect to the
provided to the standard of a competent lawyer. This
matter for which the lawyer was retained or employed
opinion should be based on a sufficient knowledge of the
must
relevant facts; an adequate consideration of the applicable
law, process, and procedure; and the lawyer’s own ƒ advise the person who gives instructions to the
experience and expertise. The lawyer’s advice must be lawyer and the chief legal officer, or both the chief
open and undisguised and clearly disclose what the lawyer legal officer and the chief executive officer, that the
conduct was, is, or would be dishonest, fraudulent,
honestly thinks about the merits and probable results of criminal, or illegal and should be stopped;
the client’s matter. Lawyers should be wary of providing
ƒ if the conduct persists, advise progressively the next
unreasonable or over-confident assurances to the client or
highest persons or groups, ultimately including the
of guaranteeing an outcome when advising the client, board of directors, the board of trustees, or the
especially when the lawyer’s employment or retainer may appropriate committee of the board, that the
depend upon advising in a particular way. The lawyer conduct was, is, or would be dishonest, fraudulent,
must also be honest with the client when the client’s criminal, or illegal and should be stopped; and
expectations about the matter are unreasonable or cannot ƒ if the organization continues with or intends to
be performed under the law. Honesty and candour are pursue the wrongful conduct, despite the lawyer’s
essential if the client is to trust the lawyer’s judgment and advice, withdraw from acting for the organization in
fully benefit from the professional relationship. that matter in accordance with s. 3.7 of the Rules.
These reporting and withdrawal obligations apply equally
2.2 Dishonesty, fraud, etc., by client or
to lawyers in private practice as well as those employed in-
others — rr. 3.2-7–3.2-8 and
commentaries; By-Law 7.1, s. 27
house. In circumstances where a lawyer employed in-
house must withdraw because the employer refuses to
A lawyer must not knowingly assist in or encourage any abandon a particular course of dishonest, fraudulent,
dishonesty, fraud, crime, or illegal conduct. The lawyer’s criminal, or illegal conduct, withdrawal may, in some
knowledge may be actual or in the form of wilful blindness cases, include resigning from the lawyer’s position with
or recklessness. In addition, a lawyer must not do or omit the employer.
to do anything that the lawyer ought to know assists in,
encourages, or facilitates any dishonesty, fraud, crime, or Unless permitted or required by the Rules to disclose the
illegal conduct by a client or any other person. Lawyers are misconduct, a lawyer must hold information relating to
also prohibited from advising a client or any other person the organization’s proposed misconduct in strict
on how to violate the law and avoid punishment whether confidence.
or not that was the client’s or other person’s intent. For 2.3 Settlement and ADR — r. 3.2-4 and
example, it would be contrary to the Rules for a lawyer to commentary
offer to continue to hold client funds in trust after the
services to the client have been completed or to assist the Lawyers play an important role in commencing and
client in concealing the funds from a third party or an settling legal proceedings. As part of the duty of honesty
external authority. and candour, lawyers should assist clients in their decision
about commencing a legal proceeding by reviewing the
Lawyers should be alert to the warning signs that may reasons for and against starting the proceeding and
indicate client dishonesty in their areas of practice. To explaining the potential consequences. Lawyers must

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DUTY TO THE CLIENT CHAPTER 7

discourage clients from starting or continuing useless 2.5 Client with diminished capacity —
legal proceedings. r. 3.2-9 and commentary

Lawyers must also advise and encourage the client to Lawyers have an obligation to ensure that the interests of
compromise or settle a dispute whenever it is possible to a client with diminished capacity are not abandoned.
do so on a reasonable basis. Receipt of an offer to settle is When a client’s ability to make decisions is impaired, the
an important stage in a matter or proceeding, and the lawyer shall, as far as reasonably possible, maintain a
lawyer must present all settlement offers to the client as normal lawyer-client relationship with the client
soon as possible for discussion and decision. The lawyer regardless of whether the client’s ability to make decisions
must explain to the client the terms of the offer, the is impaired because the client is a minor or has a mental
implications of accepting the offer, and the possibility of disability or for some other reason. Lawyers must be
making a counter-offer. The lawyer must not make, sensitive to the individual needs of the client.
accept, or reject an offer without advising the client on the Where a lawyer suspects that a client may no longer have
suitability of the offer and obtaining the client’s clear and capacity to provide instructions and manage the client’s
informed instructions. To avoid any misunderstanding, legal affairs, the lawyer should make efforts to confirm the
lawyers should confirm those client instructions in client’s capacity. If the client no longer has the legal
writing. capacity to provide instructions and manage the client’s
Lawyers should also consider the use of alternative legal affairs, the lawyer may need to take steps to have a
dispute resolution (ADR). When appropriate, the lawyer lawfully authorized representative appointed for the
should inform the client of ADR options and, if instructed client, such as a litigation guardian, to protect the client’s
by the client, should take steps to pursue those options. interests. The lawyer has an ethical obligation to ensure
that the client’s interests are not abandoned and should
2.4 Threatening penal or regulatory carefully consider and assess in each case whether it is
proceedings — r. 3.2-5 and commentary possible to render legal services in a competent manner.
A lawyer must not, in an attempt to gain a benefit for a
2.6 Client under duress or undue influence
client, threaten or advise a client to threaten, without
reasonable and lawful justification, Lawyers should be alert to situations in which clients are
under duress or subject to undue influence. This is
ƒ to initiate or proceed with a charge for an offence
(including an offence under the Criminal Code or particularly the case when a client is vulnerable. Although
any other statute of Canada, a provincial or such clients may have the capacity to instruct the lawyer,
territorial statute, or a municipal by-law); or clients who are under duress or subject to undue influence
ƒ to make a complaint to a regulatory authority. may provide instructions that do not reflect their wishes
or interests; instead, the instructions may reflect what the
A client who suggests or requests that the lawyer use this clients feel they must do based on the pressure exerted
tactic must be advised that the lawyer cannot comply with upon them.
the client’s wishes because threatening to make or
advance a charge or complaint in order to secure the Client instructions must reflect the wishes of the client.
satisfaction of a private grievance is an abuse of the court Where the instructions do not reflect the client’s wishes
process or regulatory authority. Even if a client has a due to duress or undue influence, the validity of a legal
legitimate entitlement to be paid moneys, threats to take instrument (e.g., a will) or an agreement (e.g., a domestic
penal action are not appropriate. The impropriety stems contract or minutes of settlement) may be compromised,
from threatening to use penal or regulatory proceedings either in whole or in part. Before acting on a client’s
for unintended purposes. instructions, lawyers should satisfy themselves that the
client is signing a document or entering into an agreement
Accordingly, the rule does not apply where a complaint freely and voluntarily and is not under duress, undue
being made to a regulatory authority is reasonable and influence, or pressure from anyone. Where the lawyer
lawful (e.g., when a regulatory process is intended to reasonably believes that the client’s instructions do not
provide redress or remedy to individuals for the matter reflect the client’s wishes due to duress, undue influence,
complained of). It is also not improper to notify the or other pressure exerted upon the client, the lawyer must
appropriate authority of conduct that may attract penal or honestly and candidly discuss these concerns with the
regulatory consequences while also taking steps through client and should consider whether the lawyer will be able
the civil system or to request that another lawyer comply to act upon the instructions.
with an undertaking or professional obligation or risk
being reported to the Law Society.

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CHAPTER 7 PROFESSIONAL RESPONSIBILITY

2.7 Medical-legal reports — rr. 3.2-9.1– When advising the client on how to minimize the risks in
3.2-9.3 and commentary a particular real estate transaction, the lawyer
In the course of providing legal services to the client, the ƒ must assess all reasonable options to assure title;
lawyer may need to obtain a report from an expert to help ƒ should recognize when title insurance may be an
the client’s case. Because a medical-legal report may appropriate option for the client;
contain information sensitive to the client, lawyers have
ƒ should be fully informed regarding a particular
duties set out in the Rules where such reports are insurance product before recommending it to a
concerned. A written report should not be ordered unless client;
the client has instructed the lawyer to do so and has given
ƒ should discuss with the client the advantages,
a written consent to obtain the report. conditions, and limitations of coverage options
Because lawyers must be honest and candid with the available to the client; and
client, a lawyer cannot follow the instructions of the report ƒ if discussing the TitlePLUS® program of the
writer to withhold a medical-legal report from the client. Lawyers’ Professional Indemnity Company
(LAWPRO®), must fully disclose the relationship
If a physician or health professional provides the lawyer
between the legal professions, the Law Society, and
with a medical-legal report on the condition that it is not LAWPRO.
to be shown to the client, the lawyer must return the report
immediately without making a copy unless the client has A lawyer is prohibited from receiving any direct or indirect
given the lawyer advance instructions to accept the report compensation from a title insurer, agent, or intermediary
on this condition. for recommending a particular title insurance product and
must disclose to the client that the lawyer is not receiving
If the lawyer receives a medical-legal report that contains any such compensation.
opinions or findings that might cause harm or injury to the
client if disclosed to the client, the lawyer must try to 2.9 Reporting on mortgage transactions —
dissuade the client from seeing the report. If the client rr. 3.2-9.8–3.2-9.9
insists on seeing the report, the lawyer must produce the Where a lawyer represents a lender and the loan is secured
report for the client to review. Where the client insists on by a mortgage on real property, the lawyer must provide
reviewing such a report, the lawyer must also recommend to the lender the duplicate registered mortgage and a final
that the client do so at the office of the physician or health report on the transaction within 60 days of the registration
professional who prepared the report. That way, the client of the mortgage or within some other time period as
will have the benefit of the physician’s or health instructed by the lender. This time frame for the final
professional’s expertise and advice regarding the report’s report, 60 days or otherwise, applies even if the lawyer
contents. paid funds to satisfy one or more prior encumbrances to
In some cases, a lawyer may avoid some of these concerns ensure the priority of the mortgage as instructed and the
by having a full and frank discussion with the physician or lawyer has obtained an undertaking to register a discharge
health professional about the lawyer’s obligations of the encumbrance(s) but the discharge remains
respecting disclosure of such reports to the client, before unregistered.
the medical-legal report is prepared. 2.10 Errors and omissions — s. 7.8
2.8 Title insurance — rr. 3.2-9.4–3.2-9.7 A lawyer must fulfill specific duties to the client when the
and commentaries lawyer makes an error or fails to do something that the
Conveyancing is the transfer of title of property from one lawyer should have done. Not disclosing an error or
person to another or the granting of an encumbrance such omission to the client will put the lawyer at risk of being
as a mortgage or a lien. Title insurance is an insurance disciplined for professional misconduct and causing
policy that protects residential or commercial property prejudice to the client whose interests the lawyer was
owners and their lenders against losses related to the retained to protect and promote. The duty to disclose an
property’s title or ownership. A lawyer who advises clients error or omission is part of the lawyer’s duty of honesty
about a real estate conveyance is required to advise that and candour. In connection with a matter for which the
title insurance is not mandatory in Ontario and that there lawyer is responsible, as soon as the lawyer learns of an
are other options available to protect the client’s interests error or omission that is or may be damaging to the client
in a real estate transaction. Although title insurance is and that cannot be readily corrected, the lawyer must
intended to protect a client against title risks, it is not a ƒ promptly inform the client of the error or omission,
substitute for the lawyer’s competent service. being careful not to prejudice any rights of
indemnity that either the client or the lawyer may

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DUTY TO THE CLIENT CHAPTER 7

have under an insurance, client’s protection, or additional language rights, including in relation to
indemnity plan or otherwise; Indigenous languages.
ƒ recommend that the client obtain legal advice from
When a lawyer considers whether to provide the required
an independent lawyer to discuss any rights that the
client may have arising from the error or omission; services in the language chosen by the client, the lawyer
and should carefully consider whether it is possible to render
ƒ advise the client that in the circumstances, the those services in a competent manner as required by
lawyer may no longer be able to act for the client. rr. 3.1-2 and 3.2-2B and related commentaries. See
Chapter 9 (Managing the client relationship) of these
The need for the lawyer to withdraw from representing the
Study Materials for additional information on
client may result from the lawyer being put in a conflict of
communicating with a client in the client’s language of
interest, where the lawyer may be tempted to prefer the
choice.
lawyer’s own interests regarding the mistake over those of
the client in the original matter. In certain limited 3. Duties regarding client property —
circumstances, with client consent, the lawyer may be able s. 3.5 and commentaries; By-Law 9
to continue to act for the client.
Lawyers may be required to receive, hold, and deliver
The lawyer must also promptly notify an insurer or other property belonging to a client as part of the retainer. As a
indemnitor (typically LAWPRO) of any circumstances that fiduciary, the lawyer must care for a client’s property as a
might reasonably give rise to a claim against the lawyer so careful and prudent owner would when dealing with like
that the client’s insurance protection will not be property and observe all relevant rules and laws regarding
prejudiced. This duty to report arises whether or not the the preservation of a client’s property entrusted to the
lawyer considers the claim to have any merit. lawyer. Under the Rules, the lawyer must

Under the lawyer’s compulsory professional liability ƒ promptly notify the client when the lawyer receives
insurance policy, a lawyer is contractually required to give any money or other property of the client unless the
lawyer is satisfied that the client is already aware of
written notice to the insurer, including an optional excess
this;
insurer, immediately after the lawyer becomes aware of
any actual or alleged error or any circumstances that could ƒ clearly label the client’s property and place it in
safekeeping, ensuring that the property can clearly
give rise to a claim. While compulsory insurance imposes
be identified as different and separate from the
obligations on a lawyer, these obligations must not impair lawyer’s property;
the relationship and duties of the lawyer to the client. A
ƒ maintain required records to identify and track
lawyer should consider reviewing both the Rules and the client property that is in the lawyer’s custody;
professional liability insurance policy before taking any
ƒ promptly account for client property that is in the
steps.
lawyer’s custody and deliver it to the client upon the
2.11 Official language rights — rr. 3.2-2A– client’s request or, if appropriate, at the end of the
3.2-2B and commentary retainer; and
ƒ apply to a tribunal of competent jurisdiction for
When appropriate, lawyers must advise clients of their direction if the lawyer is unsure of the proper
language rights, including the right to use the official person to receive a client’s property.
language of their choice and languages recognized in
In addition to the above, when an external authority seizes
provincial or territorial law as those in which matters may
or attempts to seize client property held by the lawyer or
be pursued, including, where applicable, Indigenous
when a third party makes a claim against the property, the
languages. The lawyer should advise the client of the
lawyer should be alert to claim privilege on the client’s
client’s language rights as soon as possible. The choice of
behalf. An example of an external authority is the Canada
official or recognized language is that of the client, not the
Revenue Agency. Lawyers should be familiar with the
lawyer.
nature of the client’s common-law privilege and relevant
Lawyers should be aware of the relevant statutory and constitutional and statutory provisions such as the Income
constitutional law relating to language rights including Tax Act (Canada) and Criminal Code.
s. 19(1) of the Canadian Charter of Rights and Freedoms
The term “client property” covers a wide range of items
and Part XVII of the Criminal Code regarding language
such as money or other valuables, physical items, and
rights in courts under federal jurisdiction and in criminal
information. By-Law 9, made under the Law Society Act,
proceedings. The lawyer should also be aware of any
sets out the specific requirements regarding the handling
provincial or territorial legislation that may provide
of client money and other property, as well as record-
keeping requirements.

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CHAPTER 7 PROFESSIONAL RESPONSIBILITY

3.1 Client property ƒ funds received by the lawyer from the client that
belong to another party;
Lawyers may be asked to safeguard client assets or items
that have value, monetary or otherwise. Lawyers should ƒ money provided to the lawyer for payment of
disbursements that will be incurred on behalf of the
only hold client property that is the subject of the legal client by the lawyer; or
services that the lawyer is providing to the client. For
ƒ money provided to the lawyer by the client or a
example, it would be appropriate for a lawyer representing
third party to secure legal services or as a deposit for
a client in the transfer of shares to hold the share fees that will be charged for these services (i.e., a
certificates in trust. money retainer).
Client property in the lawyer’s possession, including Lawyers have a duty to preserve the money they hold on a
original client documents held by the lawyer for the client client’s behalf. Lawyers must keep track of these client
(e.g., original wills, power of attorney documents, trust funds and must be able to account for them upon request
deeds, or share certificates), must be stored in a secure by the client. Any money received and held by the lawyer
manner and location befitting the property, such as a for the client must be deposited into a designated trust
safety deposit box or a fireproof safe. Lawyers must keep account and must be kept separate from the lawyer’s own
track of any property held for the client and must be able funds. A lawyer who operates any type of trust account
to account for or deliver the property upon the client’s must meet the minimum record-keeping requirements as
request. outlined in By-Law 9. If the lawyer does not receive or
hold client money in trust, the lawyer does not need to
Valuable property (i.e., property with monetary value)
open a trust account. The lawyer must still meet the
cannot be sold or negotiated by the lawyer unless the client
record-keeping requirements outlined in By-Law 9 that
has instructed the lawyer to do so. These instructions
apply to the operation of the lawyer’s general account.
should be written or confirmed in writing. By-Law 9
Trust and general accounts are discussed further in
requires lawyers to keep a record of all valuable property,
Chapter 14 of these Study Materials.
other than money, held in trust for clients.
Though a lawyer may be asked to hold other client items 3.3 Client file
that cannot be sold or negotiated by the lawyer but are The duty to preserve client property also applies to the
nevertheless of value to the client, the valuable property documents that a client may provide to the lawyer at the
record should not include these items. For example, the beginning of the lawyer-client relationship, as well as
valuable property record should not include wills, powers documents that the lawyer may create or collect for the
of attorney, deeds of title, securities registered in the client’s benefit throughout the professional relationship.
client’s name, or corporate records or seals. Lawyers are, Lawyers should keep the client’s papers and other
however, still required to exercise care in keeping these property out of sight and out of reach of those not entitled
properties. Lawyers should maintain a list of these to see them and should promptly return them to the client
properties, but this list must be separate from the valuable at the end of the retainer.
property record. Also, the valuable property record should
not document any client trust money since lawyers should To determine what documents to return to the client, the
record trust money in their financial accounting records. lawyer must ascertain which documents belong to the
client. Documents provided by the client to the lawyer
Client trust moneys would include term deposits, deposit
belong to the client. Generally, documents created during
receipts, savings accounts, or similar deposit accounts
the retainer that were prepared by the lawyer as part of the
maintained for individual clients at chartered banks or
registered trust companies. Appropriate financial record service provided to the client belong to the client, though
keeping is discussed further in Chapter 14 (Accounting, a lawyer may keep a copy for the lawyer’s records.
bank accounts, and bookkeeping) of these Study Normally, documents to be returned to the client include
Materials. ƒ originals of all documents prepared or collected for
the client;
3.2 Client money
ƒ copies of all other documents prepared or collected
As part of the retainer, a lawyer may receive, hold, or for which the client has paid;
disburse client funds on behalf of a client. These may ƒ copies of letters requested and received by the
include lawyer and paid for by the client;
ƒ funds received by the lawyer from another party ƒ copies of letters from the lawyer to third parties;
that belong to the client; ƒ letters received by the lawyer from third parties;

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DUTY TO THE CLIENT CHAPTER 7

ƒ originals of letters from the lawyer to the client include documents that came into existence during the
(presumably these would have already been sent to retainer that the lawyer was under no duty to prepare,
the client in the course of the retainer); were not prepared for the client’s benefit, and for which
ƒ copies of case law; the client cannot be regarded as being liable to pay.
ƒ briefs; Examples of such documents include the lawyer’s time
ƒ memoranda of law where the client paid for the dockets, internal memoranda, accounting records,
preparation; working notes, and copies of any client documents made
for the lawyer’s benefit and at the lawyer’s expense.
ƒ trial preparation documents (e.g., trial briefs and
document books); If the client requests copies of these documents, the lawyer
ƒ discovery and trial transcripts; may choose to provide copies at the lawyer’s discretion
ƒ vouchers and receipts for disbursements the lawyer and should discuss the cost of producing them directly
made on the client’s behalf; with the client. Lawyers should also consider retaining
ƒ experts’ reports; copies of client documents, at their own cost, to defend
against complaints or claims that may be made against
ƒ photographs or other items of evidence; and
them. Lawyers should not charge clients for these copies
ƒ data storage media containing information that since they are for the benefit of the lawyer, not the client.
belongs to the client (e.g., DVD, CD, and USB key).
Documents that belong to the lawyer do not need to be
returned to the client at the end of the engagement. These

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 Chapter 8
Fees and disbursements

Prior to being retained for a particular matter, the lawyer evidence on a matter) may also be paid from the money
should discuss two essential terms of the engagement with retainer and may be paid directly from trust upon the
the prospective client: the scope of the legal services to be client’s instruction or consent.
provided and the costs of those services. In discussing
When determining the amount of the money retainer the
scope, the lawyer should set out which services will be
client should provide, the lawyer should consider the
provided and which services will not be provided. In
circumstances of each matter (e.g., the amount of work
discussing costs, the lawyer should discuss the amount
that will be required on the file and the urgency of the
and basis of the fees and disbursements that will likely be
matter), the circumstances of the client, and the
charged to the client and whether a money retainer will be
anticipated fees and disbursements. Many of the factors
required.
the lawyer should consider when determining the amount
Lawyers should ensure that the client clearly understands of the money retainer are the same as those for deciding
what the lawyer is expected to accomplish and at what whether a fee is fair and reasonable, as discussed later in
cost. To achieve this, before or within a reasonable time this chapter. There are also certain circumstances where
after being retained, the lawyer should provide to the accepting a money retainer is prohibited (e.g., where the
client, in writing, as much information regarding fees, lawyer is employed by a charity or not-for-profit
disbursements, and interest as is reasonably practical in organization and is providing legal services to clients of
the circumstances, including the basis on which fees will such organizations) or not appropriate (e.g., where the
be determined. As the matter progresses, the lawyer lawyer has entered into a contingency fee agreement for
should confirm all fee discussions in writing with the both fees and disbursements).
client and revise the initial fees estimate, if any and
The client should be advised at the outset if further money
appropriate. Section 3.6 of the Rules of Professional
retainers will be required as the matter progresses and the
Conduct (Rules) and By-Law 9, made under the Law
original money retainer is used to pay fees and
Society Act (Act), outline the lawyer’s obligations
disbursements. Lawyers should also consider their
regarding fees and disbursements.
obligation to continue to represent the client’s interests, in
1. Retainers some situations, even if the client has not paid the lawyer’s
accounts. Although a lawyer may, after providing
In the context of providing legal services, the word
reasonable notice to the client, withdraw from
“retainer” may mean
representation of the client where the client fails to
ƒ the act of retaining a lawyer to provide legal services provide a retainer or funds on account of fees or
or the professional engagement (a “retainer”); disbursements, the lawyer must not withdraw for non­
ƒ the contract that outlines the essential terms of the payment if serious prejudice to the client would result.
professional engagement with the client (a “retainer Withdrawal from representation for non-payment of fees
agreement” or “engagement letter”); or is also restricted by the rules about criminal proceedings
ƒ an initial fee or deposit paid to the lawyer in and by the direction of the tribunal. For more information,
advance to secure the lawyer’s services in the near see Chapter 10 (Withdrawal from representation) of these
future and against which future fees and Study Materials.
disbursements will be charged (a “monetary
retainer” or “money retainer”). 2. Fees and disbursements
If practicable, the lawyer may obtain a money retainer Generally, “fees” refer to the amount charged to a client
from the client at the beginning of the professional for the legal services the lawyer provides to the client. Fees
relationship. The money retainer must be deposited into may be billed in various ways, and lawyers should consider
the lawyer’s trust account. As the lawyer works on the which methods best suit the circumstances and the client.
client matter and after the lawyer has delivered an account Common fee types include
to the client for services rendered, the lawyer may pay the
account from the money retainer held in trust. ƒ an hourly rate, charging for the actual time spent on
the client matter;
Disbursements and expenses paid by the lawyer on behalf
of the client to others (for example, to experts providing

57
CHAPTER 8 PROFESSIONAL RESPONSIBILITY

ƒ a block, fixed, or flat fee, charging a fixed amount ƒ any estimate or range of fees given by the lawyer;
for performing a particular task or tasks regardless and
of the time spent on the matter; ƒ the client’s prior consent to the fee.
ƒ fees by stages, charging for a matter that is broken
When a lawyer is acting for two or more clients in the same
down into stages, with an estimate given as to the
fee for each stage or step in the matter; and matter (i.e., in a joint retainer), the fees and
disbursements must be divided equitably between the
ƒ contingency fees, where any part of the fee depends
on the successful disposition or completion of the joint clients, unless the clients agree to a different
matter. arrangement. The division of fees between the joint clients
should be shown clearly on the statement of account
A “disbursement” refers to any expense that the lawyer
provided to each client.
pays on behalf of the client for which the lawyer is entitled
to be reimbursed by the client. Lawyers are not permitted As a matter of access to justice, lawyers are encouraged to
to make a profit from disbursements and cannot charge provide legal services pro bono and to reduce or waive a
clients more than the actual cost of the disbursement. fee where there is hardship or poverty or the client or
Common disbursements include charges for prospective client would otherwise be deprived of
adequate legal advice or representation.
ƒ mileage;
ƒ mailing or sending documents by courier; 2.2 Timely disclosure to client and cost
estimates — r. 3.6-1 and commentary
ƒ photocopying documents;
ƒ expert reports; The fiduciary relationship between lawyer and client
requires full disclosure of all financial dealings between
ƒ transcripts or certified documents; and
them. Accordingly, the Rules prohibit lawyers from
ƒ administrative and filing fees related to the client
charging or accepting a fee or disbursement unless it has
matter.
been disclosed to the client in a “timely fashion.” Though
As stated in the Rules, lawyers may only charge or accept what is considered timely may depend on the particular
an amount for a fee or disbursement that is fair, is client and the client’s matter, at a minimum, lawyers
reasonable, and has been disclosed to the client in a timely should initially discuss charges for fees and disbursements
fashion. at the outset of the retainer. Before or within a reasonable
time after beginning representation, a lawyer should
2.1 Fair and reasonable — r. 3.6-1 and
commentary, r. 3.6-4, and commentary, provide as much information about fees, disbursements,
r. 4.1-1 and interest as is reasonable and practical in the
circumstances, including the basis on which fees are
To determine what is fair and reasonable for fees, the
calculated. A lawyer should consider obtaining the client’s
lawyer should consider approval prior to incurring an expense on behalf of the
ƒ the time and effort required and spent on the client, especially in circumstances where the
matter; disbursement will be particularly substantial (e.g., an
ƒ the difficulty of the matter and the importance of expert report). The lawyer should also provide the client
the matter to the client; with an estimate of the expected fees and disbursements
ƒ whether special skill or service was required and to complete the client’s matter or to bring it to a particular
provided; stage. To ensure there is no misunderstanding, the above
ƒ the amount involved or the value of the subject information should be provided or confirmed in writing.
matter; This can be done in a retainer agreement signed by the
ƒ the results obtained for the client; client or in an engagement letter prepared by the lawyer
and delivered to the client.
ƒ fees authorized by statute or regulation;
ƒ special circumstances (e.g., loss of other business to If unexpected developments in the client’s matter arise
accept the retainer, delay in payment by the client, and result in costs that are higher than the lawyer’s initial
uncertainty of reward, or urgency of the matter); estimate to the client, the lawyer should immediately
ƒ the likelihood, if made known to the client, that inform the client of the reason for the increased fees,
acceptance of the retainer will result in the lawyer’s additional disbursements, or other costs and should
inability to accept other retainers; provide a revised estimate, all of which should be
ƒ any relevant agreement between the lawyer and the confirmed in writing. The client may then instruct the
client; lawyer based on this new information, which should also
ƒ the experience and ability of the lawyer; be confirmed in writing. One way to manage the client’s

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FEES AND DISBURSEMENTS CHAPTER 8

expectations during the retainer and to ensure timely (Competence) and 14 (Accounting, bank accounts, and
disclosure of fees and disbursements is to provide the bookkeeping) of these Study Materials.
client with interim statements of account.
2.5 Interest on overdue accounts —
2.3 No hidden fees — commentary, r. 3.6- r. 3.6-1.1
1.1
Lawyers must not charge a client interest on an overdue
The lawyer’s fiduciary duty to the client also prohibits the account except as permitted by s. 33 of the Solicitors Act
lawyer from accepting payment or compensation from or as otherwise permitted by law. This includes interest on
anyone other than the client in the matter unless the client unpaid fees, charges, or disbursements. Lawyers must
is informed and consents in writing. As well, where the inform clients in writing of the potential for interest
lawyer’s fees are being paid by a person other than the charges, the rate that will be charged (in accordance with
client (e.g., legal aid agency, borrower, or personal the Solicitors Act), and when the interest will apply.
representative), the lawyer cannot accept such payment Lawyers should consider including this information in
without the consent of that other person. Lawyers are also their initial retainer agreement or engagement letter and,
prohibited from accepting hidden fees. Payments that as required by the Solicitors Act, must include it on any
must not be hidden from the client include interim or final accounts delivered to the client.
ƒ a fee; 2.6 Written confirmation — commentary,
ƒ a reward; r. 3.6-1.1
ƒ costs; Lawyers should confirm their billing method in writing for
ƒ a commission; both fees and disbursements via
ƒ interest; ƒ a written retainer agreement signed by the client;
ƒ a rebate; ƒ an engagement letter from the lawyer; or
ƒ an agency or forwarding allowance; or ƒ a confirming memo to the client.
ƒ any other compensation related to the lawyer’s The written confirmation should set out the scope of the
professional employment by the client. legal services to be provided and describe how fees,
2.4 Charging fees and disbursements expenses, and interest will be charged. It should also
through civil society organizations — address when and how payment from the client must be
rr. 3.6-1 and 3.6-1.2; By-Law 7, s. 51 received for outstanding accounts and the need for further
money retainers, if appropriate. Lawyers should ensure
Legal services provided by a lawyer through a civil society
that the terms for each engagement are appropriate for
organization (CSO) must be provided at no cost to the
each client matter.
client by way of service, membership, or other fee model.
This means that lawyers in a CSO are prohibited from Where appropriate, the lawyer should also include details
charging clients directly or indirectly for the legal services regarding the receipt of client settlement funds. If the
provided through the CSO. For example, a lawyer must client has agreed that the lawyer may pay himself or
not require or permit a client to pay a membership fee to herself from the client’s settlement money received in
the lawyer or to the CSO for the purposes of gaining access trust, this should be clearly confirmed in writing to ensure
to legal assistance. no misunderstanding. As discussed below, payment from
those funds can only be made after the lawyer has
By-Law 7 does, however, permit lawyers to charge clients
rendered the services and delivered an account in
for disbursements relating to the legal services rendered
accordance with the Rules and By-Law 9.
through the CSO in some cases (e.g., court filing fees,
photocopying costs, court reporting services, and experts’ 2.7 Statement of account — rr. 3.6-3–3.6-
fees). To do so, prior to entering into a lawyer-client 4, 3.6-1.1 and commentary, and r. 5.1-5
relationship, the lawyer must communicate the
At the outset of the retainer, the lawyer should tell the
disbursement costs to the client and ensure that the client
client how often the client will receive interim accounts, if
understands the client’s obligations with respect to the
applicable. Whether interim or final, a statement of
payment of such disbursements. Lawyers employed by
account or bill delivered to the client must clearly and
CSOs should work with the CSO to develop a clear policy
separately detail the amounts the lawyer has charged for
around these issues. For further information about
fees and disbursements and should also include HST and
lawyers’ professional responsibilities in the context of
any interest charges. The amount for fees will be
CSOs, see below in this chapter, as well as Chapters 4
calculated based on the fee type and rate the lawyer and

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CHAPTER 8 PROFESSIONAL RESPONSIBILITY

client have agreed to. Disbursements will be passed ƒ the lawyer has delivered (and not just prepared) a
directly onto the client. HST applies to fees and some bill or statement of account to the client; and
disbursements, as outlined by Canada Revenue Agency ƒ there are sufficient funds available in trust for that
guidelines, and should be listed as a separate line on the client for the payment of the lawyer’s fees.
bill. Clients in a joint retainer should receive separate In any other circumstance, paying oneself for fees from the
statements of account outlining all of the above. client’s money held in trust or refusing to reimburse any
To preserve the lawyer’s rights regarding the recovery of portion of advance fees for work that has not been carried
fees, disbursements, or other charges from a client, the out is misappropriation of trust moneys and a form of
lawyer must comply with s. 2(1) of the Solicitors Act, professional misconduct.
which requires a lawyer’s bill to be “subscribed with the The requirements that lawyers must comply with to
proper hand” of the lawyer. The lawyer should carefully withdraw funds from trust to pay for disbursements are
review and sign every statement of account before it is sent different than those for fees for legal services.
to the client. Disbursements can be paid directly from trust upon the
If the client disagrees with the amount charged by the client’s instruction or consent since they are expenses
lawyer on an interim or final statement of account, the incurred on the client’s behalf. However, lawyers must
lawyer should discuss the matter openly and calmly with ensure they comply with their professional obligations
the client to resolve the dispute. The lawyer should under the Rules relating to fees and disbursements (i.e.,
promptly explain any charges questioned by the client and disbursements must be fair and reasonable and disclosed
should inform the client about the right to have the in a timely fashion).
account assessed under the Solicitors Act. Often client Lawyers should not withdraw funds from trust to pay
complaints about fees can be resolved by considering the themselves for fees or reimburse themselves for
client’s perspective and dealing with the client in a polite disbursements if the money is earmarked for some other
and respectful manner. Civility and professionalism must purpose. For example, settlement funds provided by a
govern all discussions, including those relating to fee client in anticipation of payment to a third party or
disputes with clients. proceeds from the sale of property that the lawyer has
agreed to hold until certain conditions are met have been
2.8 Appropriation of funds from trust —
r. 3.6-10; By-Law 9 earmarked for another purpose.

When a lawyer receives funds to be held on the client’s 3. Division of fees — rr. 3.6-5, 3.6-7, 3.6-8,
behalf, including a money retainer, those funds must be and commentaries
deposited into a trust account. Lawyers shall not The “division of fees” (or “fee splitting”) occurs when a
appropriate client funds held in trust for or on account of lawyer shares or divides the fee for legal services, paid by
fees except as permitted by the by-laws under the Act. the client, with another person. Lawyers and paralegals
Under By-Law 9, a lawyer is only permitted to withdraw who are not at the same firm may divide between them the
from the trust account fees for a matter only if
ƒ money properly required for payment to a client or ƒ the client is informed about and consents to the
to a person on behalf of a client; division of fees; and
ƒ money required to reimburse the lawyer for money ƒ the fees are split in proportion to the work done and
properly paid on behalf of a client or for expenses the responsibilities assumed.
properly incurred on behalf of a client;
A lawyer is prohibited from directly or indirectly sharing,
ƒ money properly required for or toward payment of
splitting, or dividing fees with a person who is not a lawyer
fees for services performed by the lawyer for which a
bill or statement of account has been sent; or paralegal. The Rules provide two exceptions to this
prohibition:
ƒ money that is directly transferred into another trust
account and held on behalf of a client; or ƒ lawyers in multi-disciplinary practices may divide
fees, cash flows, or profits with non-licensee
ƒ money that, under this by-law, should not have been
partners where the partnership agreement so
paid into a trust account but was mistakenly paid
provides; and
into a trust account.
ƒ lawyers who are members of inter-provincial law
Lawyers may pay themselves for fees out of client funds
firms or in law partnerships with Ontario and non-
held in trust (e.g., if a money retainer was provided by the Canadian lawyers may share fees, cash flows, or
client and deposited into the trust account) only if profits with their non-Ontario or non-Canadian
lawyer colleagues.
ƒ the lawyer has completed the work;

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FEES AND DISBURSEMENTS CHAPTER 8

However, all the other conditions outlined in s. 3.6 of the ƒ The referral fee does not exceed 15% of the first
Rules must be met. $50,000 of legal fees paid to the licensee who
receives the referral and 5% of any additional legal
Lawyers should note there is no such exception for fees paid for the matter, to a total maximum referral
affiliations. An affiliation is different from a multi- fee of $25,000.
discipline practice, an interprovincial law partnership, or ƒ The referring licensee or the licensee who receives
a partnership between Ontario lawyers and foreign the referral is not providing legal services through a
lawyers (as outlined in By-Law 7). An affiliated entity is CSO.
not permitted to share in the lawyer’s revenues, cash The above requirements apply to all referrals made on or
flows, or profits, either directly or indirectly (e.g., by after April 28, 2017, and to referrals made before or on
charging inter-firm expenses above fair market value). April 27, 2017, where there was no enforceable agreement
for the payment of a referral fee as of that date. Referral
4. Referral fees — rr. 3.6-6.0–3.6-7.1 and
commentaries
fee requirements for payment of a referral fee pursuant to
an enforceable or unwritten agreement entered into
A “referral” includes recommending another lawyer or a before or on April 27, 2017, are set out in r. 3.6-6.1(3) of
paralegal to do legal work for anyone. It does not include the Rules.
a referral where the work is done through the same firm in
which the referring lawyer primarily practises or the 4.2 Disclosure to client — r. 3.6-6.0 and
paralegal primarily provides legal services. A “referral fee” commentary and r. 3.6–6.1(2)
includes any financial or other reward for the referral of a The referring licensee and the licensee who receives the
matter. A referral fee can be direct or indirect for past, referral both have fiduciary duties to the referred client.
present, or future services but does not include a referral The referral must be in the client’s best interests, and it is
of other work by the licensee who received the referral. the client who ultimately decides whom to retain. To
Indirect referral fees include ensure the client is given sufficient information to make
ƒ a transaction at a non-market price (e.g., a non- the decision about whom to retain, including information
market lease or cost-sharing arrangement) entered about referral fees, the referring licensee and the licensee
into between the referring licensee and the licensee who receives the referral must comply with the
who receives the referral; and transparency measures set out in the Rules.
ƒ a counsel, consulting, or other relationship entered
These measures include
into between the referring licensee and the licensee
who receives the referral for consideration that does ƒ providing the client with information on the referral
not fairly reflect the work done. fee requirements;
Lawyers are prohibited from doing indirectly anything ƒ entering into a referral agreement among the
that they are prohibited from doing directly under rr. 3.6­ referring licensee, the licensee who receives the
5–3.6-7. referral, and the client;
ƒ noting the referral fee amount on the account sent
4.1 Referral fee requirements — r. 3.6-6.1 to the client; and
and commentary
ƒ having the client sign an acknowledgment for the
Where a licensee refers a client to another licensee, the referral payment.
referring licensee may accept (and the other licensee may As well, the licensee who pays or receives a referral fee
pay) a referral fee if all of the following conditions are met: must maintain the records required under By-Law 9,
ƒ The referral fee is fair and reasonable and does not which are discussed in detail in Chapter 14 of these Study
increase the total amount of the fee payable by the Materials. The disclosure requirements and the required
client. contents of the referral agreement are set out in r. 3.6-6.0.
ƒ A referral agreement (in the form provided by the The mandatory form of referral agreement and
Law Society of Ontario) has been entered into information sheet for clients are available on the Law
among the referring licensee, the licensee who Society’s website.
receives the referral, and the client at the time of the
referral or as soon as practicable after the referral. 4.3 Prohibition against licensees in a CSO —
ƒ The licensee who receives the referral has the r. 3.6-6.1; By-Law 7, Part VI
expertise and ability to handle the matter. The Rules and By-Law 7 prohibit licensees providing
ƒ The referral was not because the referring licensee professional services directly to clients through CSOs from
had a conflict of interest or because the referring receiving or paying referral fees in respect of those
licensee’s licence was suspended when the referral
matters. CSOs facilitating access to such services are also
was made.

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CHAPTER 8 PROFESSIONAL RESPONSIBILITY

prohibited from accepting or paying referral fees in align with these additional legislative amendments, on
connection with the legal services being provided to their February 24, 2022, Convocation approved further
clients. changes to the Rules, Paralegal Rules, and Paralegal
Guidelines.
4.4 Prohibition against non-licensees —
r. 3.6-7 and commentary and r. 3.2–9.5 Together these amendments establish the requirements
for contingency fee arrangements and are explored in the
The Rules prohibit lawyers from paying a referral fee to a
sections below.
person who is not a lawyer or paralegal for the referral of
clients or client matters. For example, a lawyer may not The requirements for a contingency fee agreement (CFA)
pay the lawyer’s accountant for referring a client. entered into before the above amendments came into
However, the rule does not prohibit a lawyer from force are as follows:
ƒ making an arrangement respecting the purchase ƒ CFAs entered into between July 1, 2021, and
and sale of a law practice where the consideration December 31, 2021, are governed by the Solicitors
payable includes a percentage of revenues generated Act and O. Reg. 563/20 in effect on July 1, 2021,
from the practice sold; and by the transparency and disclosure
ƒ entering into a lease under which a landlord directly requirements set out in rr. 3.6-2.1–3.6-2.2.
or indirectly shares in the fees generated by the law ƒ CFAs entered into before July 1, 2021, are governed
practice; or by the previous Solicitors Act and the now revoked
ƒ paying an employee for services, other than for O. Reg. 195/04, made under the Solicitors Act. The
referring clients, based on the revenue of the transparency and disclosure requirements set out in
lawyer’s firm or practice. rr. 3.6-2.1–3.6-2.2 of the Rules do not apply to CFAs
entered into before July 1, 2021.
While the Rules prohibit lawyers from paying a referral fee
to non-licensees, a lawyer may accept a financial fee or 5.1 Contingency fees generally — rr. 3.6-1
other reward from a non-licensee for recommending and 3.6-2–3.6-2.1(1) and
commentaries; Solicitors Act, s. 28.1;
clients to the non-licensee for non-legal services. In
O. Reg. 563/20
situations where it is appropriate for a lawyer to receive a
fee or reward from a non-licensee for the referral of a A “contingency fee” is a fee in which any part of the
client for non-legal services, certain conditions must be lawyer’s fees for legal services is dependent on the
met. The lawyer must fulfill the fiduciary duty to avoid successful outcome or completion of the client’s matter.
hidden fees and must obtain the client’s informed consent Lawyers may charge contingency fees in any matter except
before accepting the fee or reward. for family law, Criminal Code, or any other criminal or
quasi-criminal matters.
This does not apply to compensation from a title insurer.
Under r. 3.2-9.5, lawyers are unequivocally prohibited Contingency fees can be structured in different ways,
from accepting any compensation, whether directly or including:
indirectly, from a title insurer, agent, or intermediary for ƒ fixed percentage, where the percentage the lawyer
recommending a specific insurance product to their receives remains the same throughout the matter;
clients. ƒ staged or graduated, where the percentage received
by the lawyer changes depending on the stage at
5. Contingency fees and contingency fee
which the matter is resolved;
agreements — rr. 3.6-2–3.6-2.3 and
4.2-2.2 and commentary ƒ partial, where the client pays for some legal services
when the matter commences or as it proceeds, in
To enhance consumer protection, improve transparency addition to a contingency fee if the matter settles or
and fairness for clients, and facilitate access to justice, the client is successful at trial; and
amendments to the contingency fee regime came into ƒ bonus or premium, where the client pays a bonus,
force on July 1, 2021. These amendments impacted the premium, or other amount to the lawyer in addition
Solicitors Act; Contingency Fee Agreements, O. Reg. to the lawyer’s legal fees if a positive result is
563/20, made under the Solicitors Act; the Rules; the achieved in the matter.
Paralegal Rules of Conduct (Paralegal Rules); and the There is no maximum percentage prescribed by
Paralegal Professional Conduct Guidelines (Paralegal regulation. However, lawyers are prohibited from
Guidelines). charging a contingency fee that exceeds the amount the
To provide clarity and flexibility for licensees, the Ontario client receives under an award or settlement, including
government made further amendments to O. Reg. any costs, but excluding disbursements and taxes.
563/20, which came into force on January 1, 2022. To

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FEES AND DISBURSEMENTS CHAPTER 8

To determine the appropriate percentage of the The Standard Form CFA may only be modified by filling
contingency fee, lawyers must consider the following in relevant information for the matter in the blank spaces
factors: indicated, removing or tailoring optional language as
identified within the CFA, aligning the CFA with law-firm
ƒ the likelihood of success;
branding, and removing the “Example based on a partial
ƒ the nature and complexity of the claim;
award for costs” if the agreement does not include a partial
ƒ the expense and risk of pursuing the claim; costs provision or it is otherwise not applicable.
ƒ the amount of the expected recovery; and
5.2.2 Requirements when standard-form
ƒ who may receive an award of costs. contingency fee agreement is not
In all cases, the ultimate contingency fee must be fair and required — Solicitors Act, s. 28.1;
reasonable. O. Reg. 563/20, ss. 7, 8
Even where the Standard Form CFA is not required, if
When a lawyer chooses to market the provision of legal
services on a contingency fee basis, specific requirements legal services are being provided in exchange for a
apply. For more information, see Chapter 13 (Practice contingency fee, licensees must enter into a written CFA
management) of these Study Materials. with the client. Although there is no prescribed format for
the CFA, some terms are prohibited. The required terms
5.2 Contingency fee agreements: depend on the circumstances. Lawyers should consult
requirements and exemptions — r. 3.6- ss. 7–8 of O. Reg. 563/20 for more information.
2.1 and commentary; Solicitors Act,
s. 28.1; O. Reg. 563/20 5.2.3 Client disclosure requirements for
contingency fees — rr. 3.6-2–3.6-2.1
A CFA is a retainer agreement under which payment is and commentary
dependent on the successful disposition or completion of
the matter. Subsection 28.1(4) of the Solicitors Act Subject to limited exceptions, lawyers must comply with
requires that CFAs be in writing. certain client disclosure requirements before entering into
a CFA. First, the lawyer must advise the client of the
Additional requirements are outlined in O. Reg. 563/20 factors considered in determining the appropriate
when the client is a person under disability. Lawyers contingency fee as outlined above. Second, the lawyer
should take extra care when considering a CFA with a must ensure the client is provided with a copy of the Law
client with diminished capacity or who is vulnerable. Society’s “Contingency fees: What you need to know”
5.2.1 Standard-form contingency fee
consumer guide, available on the Law Society’s website.
agreement — O. Reg. 563/20, s. 7 Prior to entering into a CFA, the lawyer must give the
client a reasonable opportunity to review and consider the
O. Reg. 563/20 prescribes that the Standard Form CFA is information in the consumer guide and to make any
the one titled “Standard Form Contingency Fee inquiries of the lawyer.
Agreement” dated November 18, 2021, and available on
the Law Society’s website. Upon completion of a CFA, lawyers must provide certain
fee-related disclosure in the statement of account
The Standard Form CFA must be used in every situation prepared and delivered to the client. This disclosure
where legal services will be provided wholly or partly in includes
exchange for a percentage or proportion of the amount or
the value of the property recovered under an award or ƒ a clear breakdown of the award or settlement,
including the net amount the client will receive, and
settlement, except where
an itemized list of disbursements, legal fees, and
ƒ the court has approved the CFA or the contingency taxes charged to the client;
fee set out in the CFA; or ƒ an explanation of the reasonableness of the
ƒ the client (or any person or entity responsible for contingency fee with reference to
the payment of the client’s legal fees in the matter) — the time expended;
is an organization that (together with any affiliates,
members of the same joint venture, or any other — the legal complexity of the matter;
related persons or entities) — the results achieved; and
— employs more than 25 individuals; — the risks assumed; and
— employs a lawyer on a full-time basis; or ƒ a statement that the client has the right to apply to
— has assets or gross annual revenues exceeding the Superior Court of Justice for an assessment of
$10 million. the lawyer’s bill and that specifies the latest date for
doing so.

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CHAPTER 8 PROFESSIONAL RESPONSIBILITY

The above client disclosure requirements do not apply retainer and the lawyer wishes to secure payment by some
where the lawyer is retained to represent one or more other means, including
persons in a proceeding commenced under the Class
ƒ holding and registering a mortgage against the
Proceedings Act, 1992, or where either the client or any client’s real property, per s. 35 of the Solicitors Act;
person responsible for the payment of the client’s legal
ƒ obtaining a charging order on the client’s property
fees in the matter is an organization that meets the recovered or preserved by the lawyer’s
requirements in s. 7(3) of O. Reg. 563/20. instrumentality, per s. 34 of the Solicitors Act; or
Where a court has approved a contingency fee or the CFA, ƒ asserting a common-law solicitor’s lien on the
there is no need for the lawyer to provide the client with client’s property (e.g., the client’s file) already in the
an explanation of the reasonableness of the CFA or a lawyer’s possession.
statement that the client has the right to apply for an Even where the law permits any of the above, the lawyer
assessment. may be limited in exercising these rights by other factors.
In each circumstance, the lawyer should evaluate whether
In addition to the above, lawyers who market legal services
the security is appropriate. As well, before taking any
on the basis that clients may be charged a contingency fee,
action to secure payment for legal services through a
must publish their general maximum contingency fee
financial transaction, such as a mortgage against the
percentage. Further information on the contingency fee
client’s real property, the lawyer must disclose and explain
marketing requirements is contained in Chapter 13 of
the nature of the conflicting interest to the client and why
these Study Materials.
it may develop later. The lawyer must also recommend or
5.3 Record-keeping and reporting require that the client receive independent legal advice or
obligations for contingency fees independent legal representation depending on who the
client is and the nature of the transaction. After the lawyer
There are no record-keeping obligations specific to
has made full disclosure and recommended or required
contingency fees. However, lawyers should maintain a
the client to receive independent legal advice or
copy of their CFAs and any other documents used to
independent legal representation, the lawyer must obtain
confirm compliance with the contingency fee
the client’s consent prior to proceeding with the
requirements.
transaction.
6. Securing payment for legal services —
If the client requests that the lawyer also act on the
rr. 3.4-27–3.4-29 and commentaries
transaction, the lawyer should not uncritically accept the
The best way to ensure payment for legal services is for the client’s request. If the lawyer accepts the retainer, the
lawyer to ask the client to initially provide a money lawyer must obtain the client’s consent to act and must
retainer in an amount that is fair and reasonable to cover reasonably believe that the lawyer is able to act for the
the anticipated legal fees and disbursements for the client without having a material adverse effect on the
client’s matter. However, there may be circumstances lawyer’s loyalty or representation of the client. For more
where it is not feasible or possible to obtain a money information, see Chapter 6 (Conflicts of interest) of these
Study Materials.

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 Chapter 9
Managing the client relationship

Lawyers should adopt business policies and risk of third parties during lawyer-client meetings and
management practices to help them meet client needs and the prospective client’s sharing of the lawyer’s
fulfill their professional duties to the client. The lawyer advice with a third party;
must manage the client relationship and the client’s ƒ consider the tasks that must be completed to serve
expectations throughout all stages of the retainer. the prospective client and determine whether the
lawyer has the required level of knowledge,
1. Managing the stages of the client experience, or skill to handle the matter without
relationship undue delay, risk, or expense to the prospective
client;
Managing the client relationship is in the best interests of
ƒ confirm that the lawyer has time available to meet
both the lawyer and the client. To successfully manage the deadlines imposed by the prospective client and
their responsibilities to clients, lawyers should plan for the nature of the matter;
each of the following stages in the relationship:
ƒ discuss with the prospective client the potential cost
ƒ initial client or matter screening; of the matter, the prospective client’s ability to pay,
and the lawyer’s option to withdraw in limited
ƒ non-engagement or engagement; circumstances;
ƒ implementation; and ƒ evaluate whether the prospective client’s
ƒ disengagement or completion. expectations are reasonable and achievable;

1.1 Initial screening stage

ƒ avoid representing clients whose conduct or
objectives are dishonest or unlawful; and
The purpose of conducting an initial client or matter ƒ learn whether the prospective client has been
screening is to determine whether the lawyer can assist the assisted previously by another licensee and, if so,
prospective client (i.e., anyone seeking advice or confirm that the former licensee was discharged or
assistance on a matter that invokes a lawyer’s professional has withdrawn.
judgment, even though the lawyer has not prepared a These factors will assist a lawyer in deciding whether to
retainer agreement, rendered an account for fees and accept or decline the retainer.
disbursements, or agreed to represent that person). As
part of this initial screening stage, lawyers should Lawyers should also be aware of signs that indicate the
determine whether they are competent to act, whether prospective client’s expectations may be difficult to
they can complete the tasks required in a timely manner, manage, as discussed later in this chapter. Prior to
and whether there are any conflicts of interest. agreeing to act for such clients, lawyers should ensure that
they are willing and able to serve the prospective client
The initial screening should be used to despite any difficulties.
ƒ determine how the prospective client heard about Information gathered at the screening stage should be
the lawyer or the lawyer’s firm to assist in marketing
recorded in a memo to the file, and a file should be opened
efforts;
even if the lawyer does not provide further services to the
ƒ identify the prospective client in accordance with prospective client after the initial screening.
By-Law 7.1, made under the Law Society Act;
ƒ assess the prospective client’s demeanour to 1.2 Non-engagement stage
determine if the lawyer can work effectively and
Once the prospective client has been screened, the lawyer
cooperatively with the prospective client;
must decide whether to accept or decline the retainer. If
ƒ evaluate whether there are any conflicts of interest
the lawyer declines the engagement for legal services or
and whether those conflicts can be resolved in
accordance with the Rules (e.g., by the prospective the prospective client chooses not to retain the lawyer, the
client’s consent to those conflicts and independent non-engagement should be confirmed in writing by way of
legal advice)—this should be done prior to obtaining a “non-engagement letter.”
confidential information from the prospective
client; A non-engagement letter should

ƒ explain to the prospective client the confidentiality, ƒ include the date of the interview or consultation;
privacy, and privilege issues related to the presence

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CHAPTER 9 PROFESSIONAL RESPONSIBILITY

ƒ clearly confirm that the lawyer is not retained to ƒ in the case of a joint retainer, explain that there is
provide further legal services for the matter no confidentiality between the clients and that, if a
discussed in the consultation; conflict develops that cannot be resolved, the lawyer
ƒ explain the reason(s) for declining the retainer in cannot continue to act for both or all of them and
general terms (e.g., the lawyer is not available, the may have to withdraw from representing the clients;
client is unable to pay the retainer, or there is a ƒ outline other issues regarding confidential
conflict of interest); information (e.g., disclosure to a third-party expert
ƒ refer to any applicable statute of limitations and to obtain the expert’s opinion);
upcoming court dates (if any), and urge immediate ƒ confirm the client’s goals and the suggested strategy
action, if appropriate; to meet those goals;
ƒ not include any opinion or advice regarding the ƒ outline the scope of representation;
matter unless careful research to support an opinion ƒ where services are being provided through a civil
has been completed; society organization, advise the client honestly and
ƒ recommend that the prospective client(s) seek other candidly about the nature, extent, and scope of the
legal representation, if appropriate; services that the lawyer can provide;
ƒ list any documentation or other property provided ƒ specify what the lawyer needs from the client for the
during the consultation that is being returned to the representation (e.g., information, documents, and
prospective client; actions);
ƒ be sent via registered mail, process server, or any ƒ describe the key steps and processes in the
other means by which the lawyer can confirm representation;
delivery and receipt (e.g., giving the letter to the ƒ identify the lawyer primarily responsible for the
client in person and having the client sign an retainer and any additional staff members who will
acknowledgment of receipt); and be involved and what functions they will perform;
ƒ be copied and retained in the lawyer’s file. ƒ provide an estimated time for the key steps and
Though the lawyer will not be providing legal services completion of the matter;
beyond those that may have been provided during the ƒ set out the method (e.g., letter and email) and
initial consultation, the client or prospective client’s frequency with which the lawyer will communicate
information should be included in the lawyer’s conflicts- with the client, taking into account any specific
checking system. This is because a lawyer owes a duty of accommodations that the client may need;
confidentiality not only to clients, but also to prospective ƒ clearly outline the type and amount of fees the
clients who consult with the lawyer but to whom the lawyer will charge (e.g., hourly rate and flat rate)
lawyer does not provide or agree to provide legal services. and whether the fees may change in the future;
ƒ clearly outline potential disbursements and indicate
When a lawyer declines a matter, the lawyer may refer the whether the client is responsible for paying these
prospective client to another lawyer or a paralegal, as directly or the lawyer will pay them and later bill the
appropriate, or suggest resources that the prospective client for reimbursement (e.g., third-party experts,
client may use to find another licensee. accountants, actuaries, valuators, and other
advisors);
1.3 Engagement stage ƒ indicate whether a money retainer is required and
If the lawyer accepts the retainer, the terms of the when it needs to be replenished;
engagement should be confirmed in writing either by way ƒ set out if and how often the lawyer will provide the
of a “retainer agreement” or “engagement letter.” Two client with interim bills, what they will include, and
basic terms to include in any retainer agreement or when the client can expect the final bill;
engagement letter are the scope and costs of legal services ƒ indicate the consequences of late payment,
to be provided. Depending on the nature of the matter and including interest to be charged on overdue
the client, lawyers may want to include other terms. accounts in accordance with the Solicitors Act or as
otherwise permitted by law;
Confirming the terms of the engagement in writing
reduces the risk of misunderstanding between the lawyer ƒ indicate the consequences of non-payment of fees,
including potential withdrawal of services in
and client.
accordance with the Rules of Professional Conduct
A retainer agreement or engagement letter should (Rules);

ƒ clearly identify the client(s) by using proper legal ƒ outline other circumstances that will or may result
names; in the termination or withdrawal of services by the
lawyer;
ƒ identify any specific needs that the client(s) may
have;

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MANAGING THE CLIENT RELATIONSHIP CHAPTER 9

ƒ outline the consequences if the lawyer cannot obtain meet those changing needs and goals. However, if a lawyer
adequate instructions to complete the tasks for anticipates changes or any changes occur that prevent the
which the lawyer was retained; lawyer from meeting any of the terms of the retainer or
ƒ discuss ownership of file contents and work engagement, the lawyer must promptly inform the client
product, transfer of files, and the lawyer’s file of such matters and the reasons for those changes.
retention or destruction policy if the retainer is
ended by the client or by the lawyer; If the terms of the initial engagement change, a letter to
ƒ specify that any changes to the terms of the retainer the client should confirm those changes. This may include
agreement or engagement letter must be in writing; when something unusual or unforeseen occurs that
and substantially affects the amount of a fee or disbursement.
ƒ clearly state that the engagement does not begin A lawyer should confirm with the client in writing the
until the retainer agreement or engagement letter is substance of all fee discussions that occur as a matter
signed by the client and returned to the lawyer and progresses. Where changes to the scope of the retainer or
any applicable money retainer has been paid. the terms of the lawyer’s representation of the client are
The language and meaning of the retainer agreement or significant, these should be documented in a new retainer
engagement letter should be clear, and lawyers should agreement. This will help the lawyer document when the
review the terms of the engagement with the client to changes became effective and avoid misunderstanding by
ensure that there is no misunderstanding. Lawyers should the client.
also take into account the client’s accessibility needs.
Any new or different instructions from the client should
Though a lawyer should use a retainer agreement or also be obtained or confirmed in writing. As well, the
engagement letter for every matter, the lawyer is required lawyer must explain to the client any limitations regarding
to document the terms of engagement when acting in a the client’s instructions. For example, the lawyer should
limited scope retainer. Once the lawyer has advised the make it clear to the client that the lawyer cannot accept or
client honestly and candidly about the nature, extent, and act on client instructions that would cause the lawyer to
scope of the services that the lawyer can provide (and, violate any of the Rules.
where appropriate, whether those services can be
Lawyers are required to recognize a task for which they
provided within the financial means of the client), the
lack competence. If there is a task in respect of a client’s
lawyer must confirm the services in writing and give the
matter that the lawyer is not competent to perform and a
client a copy of the written document when practicable to
disservice would be done to the client by the lawyer
do so.
undertaking the task, the lawyer should
Lawyers who are retained on a contingency fee basis on or ƒ decline to act;
after July 1, 2021, are required to enter into a standard-
ƒ obtain the client’s instruction to retain, consult, or
form contingency fee agreement (Standard Form CFA)
collaborate with a licensee who is competent for
with the client, except in limited circumstances. The that task; or
requirements of and exceptions to a Standard Form CFA,
ƒ obtain the client’s consent for the lawyer to become
are discussed in detail in Chapter 8 (Fees and competent without undue delay, risk, or expense to
disbursements) of these Study Materials. the client.
1.4 Implementation stage However, if the lawyer later determines that the lawyer is
not competent to continue to handle the client’s matter,
Once retained, the lawyer must competently carry out the
the lawyer must withdraw from representation in
legal services that the lawyer was hired to provide to the
accordance with the Rules. See Chapter 4 (Competence) of
client. The quality of service required of a lawyer is service
these Study Materials for more information on the
that is competent, timely, conscientious, diligent,
required standard of competence.
efficient, and civil. The lawyer should perform all
functions for the client in a cost-effective and client- 1.5 Disengagement or completion stage
responsive manner. The lawyer must keep the client
Eventually the retainer will end, either because the matter
informed regarding the client’s matter, through all
is complete or because the client or lawyer terminated the
relevant stages of the matter and should meet deadlines
retainer before completion. Although the client has the
unless the lawyer is able to offer a reasonable explanation
right to end the retainer at any time and for any reason,
and ensure that no prejudice to the client will result.
the lawyer does not have the same right. The Rules set out
As the matter progresses, the client’s needs and goals may specific circumstances where the lawyer may or must end
change. Lawyers must continue to work and communicate the engagement. For more information, see Chapter 10
with the client to review and adjust the legal strategy to

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CHAPTER 9 PROFESSIONAL RESPONSIBILITY

(Withdrawal from representation) of these Study scheduled and that the client should retain a new
Materials. legal practitioner promptly.
As in the case of a non-engagement letter, depending on
The lawyer must confirm discharge by or withdrawal from
the circumstances, it may be advisable for the lawyer to
representation of the client in writing. The lawyer should
confirm the client’s receipt of the disengagement letter.
also confirm completion of a particular matter or task with
the client in writing. Such a letter to the client may be 2. Managing client expectations
known as a “closing,” “reporting,” “disengagement,” or
“termination” letter. Where the retainer has ended Many client complaints result from a failure to meet client
because the matter is complete, the letter should expectations as to service, rather than dissatisfaction with
the results obtained for the client by the lawyer. A client’s
ƒ confirm that the particular matter was completed service expectations should be discussed at the outset of
and the outcome of the matter;
the retainer. The lawyer should ask the client what is
ƒ detail the steps that were taken to complete the expected from the lawyer and must tell the client what the
matter; lawyer needs from the client to meet those expectations.
ƒ specify any additional steps to be taken by the client
or the lawyer in the future to protect the client’s Clients have expectations about many things, such as how
interests regarding the completed matter; long it will take to achieve legal results, how quickly the
ƒ inquire whether the client requires any further lawyer will return the client’s calls or other
assistance from the lawyer if any new developments communications, and the cost of the legal services the
occur; lawyer will provide. Client expectations may change as the
ƒ confirm the return of client property, including matter progresses or as new developments arise. The
documents and moneys belonging to the client; lawyer must keep the client informed of all developments
throughout the retainer, whether negative or positive,
ƒ advise the client about arrangements for storage
and retrieval of file contents, where applicable; whether expected or unanticipated. The lawyer must also
provide full and timely disclosure of all fees and
ƒ remind the client of the lawyer’s document
retention and destruction policy regarding the client disbursements. To help manage client expectations
file (as outlined in the retainer agreement or regarding the cost of legal services, the lawyer should,
engagement letter); before or within a reasonable time after commencing
ƒ include the final account and provide a trust representation, provide to the client in writing as much
statement reconciling funds received and disbursed, information regarding fees and disbursements and
if appropriate; and interest as is reasonable and practical in the
ƒ thank the client for the opportunity to work on the circumstances. The lawyer may also consider providing
matter. the client with interim bills as the matter progresses.
Where the lawyer was retained only to provide limited The lawyer should also monitor the client’s expectations
services to the client, the lawyer should provide the client and the lawyer’s ability to meet those expectations. If the
with a similar letter that confirms that the terms of the client’s expectations are unreasonable or if the lawyer
limited scope retainer have been completed and reminds cannot meet the client’s reasonable expectations, such
the client of the steps that may still need to be taken in the matters should be discussed and resolved with the client.
client’s matter but for which the lawyer was not retained. Where a client does not follow the lawyer’s advice, the
This letter may recommend that the client seek legal lawyer should send the client a letter confirming that the
advice on matters that fall outside the scope of the retainer client did not follow the advice or obtain the client’s
and include any upcoming deadlines or applicable written acknowledgment of same. Subject to the Rules on
statutory limitation periods. withdrawal from representation, the lawyer may have to
end the engagement if there is a material breakdown in
If the client or the lawyer ended the retainer before the
communications and the lawyer can no longer serve the
matter was completed or before the lawyer could complete
client as the client requires.
the tasks required to fulfill the retainer, the lawyer must
notify the client in writing. The written notification must 2.1 What do clients want?
state
To meet the client’s expectations, the lawyer must first
ƒ the fact that the lawyer has withdrawn; determine what those expectations are. Though the
ƒ the reasons, if any, for the withdrawal; and client’s needs and wants will vary with the client and the
ƒ in the case of litigation, that the client should expect matter, common expectations voiced by clients include
that the hearing or trial will proceed on the date

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MANAGING THE CLIENT RELATIONSHIP CHAPTER 9

ƒ the specific legal services the client will receive from ƒ The client thinks the client knows the legal process
the lawyer; better than the lawyer.
ƒ the specific results the lawyer is likely to achieve for ƒ The client has unrealistic expectations (e.g., taking
the client; estimates as guarantees, becoming overly irritated
ƒ the costs associated with achieving those results; with delay, and constantly complaining).
and ƒ The client demands that the lawyer set aside all
ƒ the time required to complete the legal services and other cases to handle the client’s matter.
achieve the results. ƒ The client makes unrealistic demands of the lawyer
and the lawyer’s staff.
Even if the client does not specifically ask about the above,
these issues should be addressed by the lawyer and should ƒ The client is clearly motivated by malice and has
be confirmed in the retainer agreement or engagement instituted proceedings solely for the purpose of
injuring the other party.
letter provided to the client.
Lawyers are encouraged to provide legal services to clients
Clients may have unspoken expectations, which are who need it, whether or not the lawyer-client relationship
equally as important. Most clients expect the lawyer to may be challenging. If a lawyer chooses to represent a
ƒ be available to the client; client and the lawyer-client relationship later becomes
ƒ listen to the client; challenging, the lawyer should encourage realistic client
expectations and manage the relationship as well as
ƒ ask for the client’s opinion;
possible. To do so, the lawyer may address the issues
ƒ acknowledge the client’s concerns; directly with the client; involve another licensee, as
ƒ speak to the client, not at the client; appropriate; or evaluate whether another licensee would
ƒ keep the client informed; better serve the client.
ƒ treat the client as a person, rather than as a file; and Once a lawyer agrees to act, the lawyer must fulfill all
ƒ care about the client and not just the matter. client-related duties, regardless of how challenging the
relationship may be. Though a lawyer may withdraw after
These aspects of client service and communication are
a retainer is established where there has been a serious
also components of competence and quality of service
loss of confidence between the client and the lawyer, the
under the Rules. Lawyers should realize that successfully
fact that the lawyer-client relationship is or has become
completing the legal tasks associated with the client
challenging to deal with may not alone be reason enough
matter is not always enough to satisfy the client. In some
to end the engagement. For more information, see
cases, the work itself may be secondary to the unspoken
Chapter 10 of these Study Materials.
needs of the client. Difficulty in the lawyer-client
relationship can develop if the lawyer and client do not 2.3 Client communication
agree on what they expect of each other or if these
expectations were not discussed at the beginning of the Effective client communication is essential for a successful
retainer. lawyer-client relationship. To promote good client
communication, lawyers must give information to and
2.2 Challenging lawyer-client relationships receive information from the client. Lawyers must
communicate with clients at all relevant stages of a matter
Some lawyer-client relationships can be more challenging
in a timely and effective manner. What is effective
than others. Knowing how to recognize and deal with such
communication with the client will vary depending on the
situations can put the lawyer in a better position to avoid
nature of the retainer and the needs and sophistication of
or manage such relationships. Lawyers should be alert for
the client.
the following indicators that a lawyer-client relationship
may be challenging: Lawyers should be sensitive to the communication needs
ƒ The client has a pressing emergency or a “life or of their clients since each client may require a different
death” matter; if the client cannot give sufficient approach or strategy. These may include using plain
lead time to do the work properly, consider language to explain an issue, ensuring that a letter to a
declining the matter and confirm this in writing. visually impaired client is printed in a large font, or using
ƒ The client has already been through a number of the services of an interpreter or translator. Where a lawyer
licensees and has been dissatisfied with each one. has a client with diminished capacity, the lawyer may need
ƒ The client wants to barter for the lawyer’s services, to adjust the manner in which the lawyer communicates
offering inducements such as work or benefits for with the client, depending on the client’s abilities. The
handling the client’s case. lawyer has a duty to provide the same level of service to

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CHAPTER 9 PROFESSIONAL RESPONSIBILITY

the client regardless of the client’s ability and, as far as accurately translate the information from the client, the
reasonably possible, maintain a normal lawyer-client lawyer’s advice, and the client’s instructions.
relationship. If the client’s disability is such that the client
Lawyers should be cautious when accepting the assistance
no longer has the legal capacity to manage the client’s legal
of a family member or friend of the client as an interpreter.
affairs, the lawyer may need to take steps to have a lawfully
In addition to the risk of having a third party unduly
authorized representative appointed.
influence or place pressure on the client, family members
To effectively manage relationships with clients, the or friends of the client may not have the necessary training
lawyer should consider and confirm the client’s specific to be interpreters of legal information, and their interests
needs at the beginning of the retainer. may differ from those of the client. The presence of a
family member or friend of the client may, in some cases,
In determining the appropriate approach, the lawyer
also impact the client’s willingness to divulge information
should consider each client’s
that the lawyer needs to provide competent legal advice.
ƒ age; In addition, the presence of a third party during client
ƒ education; meetings can cause confusion as to whom the lawyer
ƒ physical health; represents and may give rise to confidentiality issues and
potential conflicts of interest, as discussed earlier in these
ƒ mental health;
Study Materials.
ƒ functional ability;
Lawyers may use various methods to communicate with
ƒ communication style;
clients and should discuss the following with the client at
ƒ level of understanding or sophistication; and the beginning of the retainer:
ƒ ability to make decisions or provide instructions.
ƒ the method of preferred contact and related details
In communicating with clients, lawyers should also be (e.g., telephone, text, fax, email, mail, courier,
aware of their obligations under the Ontario Human priority post, or office or home visits);
Rights Code and the Accessibility for Ontarians with ƒ the drawbacks or risks associated with a particular
Disabilities Act, 2005. method of communication;

As discussed in Chapter 7 (Duty to the client) of these ƒ the frequency with which the lawyer will update the
client on the matter going forward;
Study Materials, a lawyer must, when appropriate, advise
a client of the client’s language rights, including the right ƒ the method used to update the client (e.g., sending
the client copies of correspondence, court
to use the official language of the client’s choice and
documents, or memos to the client file); and
languages recognized in provincial or territorial law as
those in which matters may be pursued. ƒ the average time the lawyer will need to respond to
calls, texts, emails, letters, or other
The choice of language is that of the client, not the lawyer. communications.
If a client proposes to use a language of the client’s choice It is the lawyer’s responsibility to ensure that what is
and the lawyer is not competent to provide the required communicated to the client is understood by the client.
services in that language, the lawyer must decline to act Where information or advice being shared is sensitive,
unless the lawyer is otherwise able to competently provide complicated, or important to the client’s ability to provide
those services (e.g., through an interpreter) without undue instructions, the lawyer should consider confirming this
delay, risk, or expense to the client and the client consents information or advice in writing.
in writing. If the lawyer and client agree to communicate
through an interpreter, it is important that the interpreter
not have a conflict of interest and can be relied upon to

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 Chapter 10
Withdrawal from representation

Once a lawyer has been retained, the client may end the disadvantage the client. The client should have adequate
lawyer-client relationship at any time and for any reason. time to retain another licensee to continue with the matter
A lawyer, however, may only withdraw from representing without losing any advantages or rights already obtained
a client by the original lawyer during the original lawyer’s
representation. The tribunal, opposing parties, and others
ƒ for good cause; and
directly affected (if any) should also be notified of the
ƒ on reasonable notice to the client.
withdrawal, while ensuring compliance with the Rules
The lawyer must have a legitimate reason to withdraw. relating to confidentiality.
The amount of time or advance warning and the way in
To ensure that the lawyer and client are clear as to when
which the lawyer informs the client of the lawyer’s
the lawyer may or must end the professional relationship,
intention to stop representing the client depend upon the
the lawyer should review with and explain to the client at
type and stage of the matter, the individual client, and the
the beginning of the retainer
client’s needs and expectations.
ƒ when the lawyer may or must withdraw from
Section 3.7 of the Rules of Professional Conduct (Rules) representing the client;
deals with the lawyer’s obligations when withdrawing and
ƒ that all documents to which the client is entitled will
sets out situations where the lawyer
be provided or returned to the client when the
ƒ may choose to withdraw (i.e., optional withdrawal); matter or retainer is completed, the client
terminates the relationship, or the lawyer
ƒ must withdraw (i.e., mandatory withdrawal); and
withdraws; and
ƒ must comply with special rules (i.e., withdrawal
ƒ which documents in the client file belong to the
from criminal cases).
lawyer and will be kept by the lawyer when the
This chapter outlines the lawyer’s obligations both during retainer is completed, the client terminates the
and after withdrawal. These obligations apply no matter relationship, or the lawyer withdraws.
why or how the withdrawal came about. To ensure the client understands these details, the lawyer
should consider including them in the retainer agreement
1. Good cause and reasonable notice —
or engagement letter.
r. 3.7-1 and commentary
As noted above, a lawyer cannot withdraw from 2. Optional withdrawal
representing a client except for good cause and on Where there is good cause to do so, a lawyer is permitted
reasonable notice to the client. Whether a lawyer has good to withdraw from representation if the lawyer can give the
cause for withdrawal depends on many factors, including client reasonable notice of the withdrawal. The Rules
ƒ the nature and stage of the matter; provide that a lawyer may choose to withdraw from
ƒ the relationship with the client; representing a client where

ƒ the lawyer’s competence to handle the matter; and ƒ there has been a serious loss of confidence between
the lawyer and the client; or
ƒ any harm or prejudice to the client that may result
from the withdrawal. ƒ after reasonable notice, the client fails to provide a
retainer or pay the lawyer’s fees or disbursements
Reasonable notice of the intent to withdraw also varies and no serious prejudice to the client would result.
depending on the client matter. An essential element of
In these situations, the lawyer is not required to withdraw
reasonable notice is notification to the client unless the
but may do so as long as the lawyer follows the direction
client cannot be located after reasonable efforts. The rules
of the tribunal and, if applicable, the specific rules
of the tribunal or the law may outline what steps the
regarding withdrawal from criminal proceedings, as
lawyer must take to properly withdraw. In such
explained later in this chapter.
circumstances, the rules of the tribunal or the law will
govern. When no specific timelines or provisions are set
out, the lawyer should protect the client’s interests to the
best of the lawyer’s ability and not abandon the client at a
critical stage of a matter or when withdrawal would

71
CHAPTER 10 PROFESSIONAL RESPONSIBILITY

2.1 Serious loss of confidence — r. 3.7-2 notice must be reasonable; it must give the client enough
and commentary advance warning and should be in writing. Withdrawal of
Subject to any direction of the tribunal or rules relating to services for non-payment is subject to the direction of the
withdrawal in criminal matters, a serious loss of court or tribunal. If it is a criminal matter, lawyers must
confidence between the lawyer and client may be good comply with the rules relating to withdrawal from criminal
cause for the lawyer to withdraw. proceedings, as discussed below.

For example, a serious loss of confidence may result when 3. Withdrawal from criminal proceedings
the client deceives the lawyer. If the client is not truthful, A lawyer may withdraw from acting for a client in a
the lawyer may not have the relevant information needed criminal matter for non-payment of fees or for other
to effectively represent the client and may be unable to adequate cause if the lawyer meets the requirements of
further the client’s interests. Another example is where the and complies with the Rules. Whether a lawyer will be
client refuses to accept and act on the lawyer’s advice on a permitted to withdraw depends upon the interval between
significant point. A lawyer who continues to represent a
client who will not take the lawyer’s professional advice ƒ the withdrawal: the time and date when the lawyer
intends to stop representing the client; and
may no longer be the appropriate legal services provider
for that client. Any benefit of the lawyer’s advice will be ƒ the trial: the time and date the client’s trial begins.
lost to the client or greatly reduced. Other examples of a Generally, the amount of time between withdrawal and
serious loss of confidence between a lawyer and client trial must be enough to allow the client to hire another
include licensee, as appropriate, and to allow that new licensee
ƒ the client being persistently unreasonable or enough time to prepare for the trial. What is considered a
uncooperative in a material respect; sufficient interval will vary with the level of knowledge and
ƒ a material breakdown in communications between expertise required of the new licensee and the type, stage,
the lawyer and client; or and complexity of the matter, among other factors.
ƒ the lawyer facing difficulty in obtaining adequate 3.1 Withdrawal permitted — r. 3.7-4 and
instructions from the client. commentary
Even when faced with a serious loss of confidence, the A lawyer acting in a criminal matter may withdraw for
lawyer should not threaten to withdraw legal services to non-payment of fees or some other adequate cause if the
force the client to make a quick decision on a difficult interval between the withdrawal and the date set for trial
question or matter. In such cases, the lawyer must give the of the matter is enough to allow the client to obtain
client reasonable notice of withdrawal, should protect the another licensee to act in the matter, and to allow the other
client’s interests to the best of the lawyer’s ability, and licensee enough time for preparation.
should notify the court, opposing parties, and others
directly affected of the withdrawal, without indicating the Prior to withdrawing, the lawyer must also
lawyer’s reasons for the withdrawal unless such disclosure ƒ notify the client, preferably in writing, that the
is justified or permitted under the Rules. lawyer is withdrawing and the reason for the
withdrawal;
2.2 Non-payment of fees — r. 3.7-3
ƒ provide an account to the client for all moneys
Where, after reasonable notice, the client fails to provide received for fees and disbursements;
a money retainer or funds on account of fees or ƒ notify Crown counsel (or the prosecutor) in writing
disbursements, a lawyer may withdraw from representing of the withdrawal;
the client for non-payment of fees unless serious prejudice ƒ notify the clerk or the registrar of the court in
would result from the withdrawal. Where immediate writing of the withdrawal if the lawyer is on the
withdrawal would result in serious prejudice to the client, record as acting for the accused; and
the lawyer must continue to act for the client competently ƒ comply with the applicable rules of the court.
and diligently even if the fees remain unpaid. Once the risk
While the Rules do not expressly require the lawyer to
of serious prejudice has passed, the lawyer may then
make an application to the court to be removed from the
withdraw for non-payment of fees.
record as the client’s lawyer, most rules of court do (e.g.,
Before the lawyer can withdraw for non-payment of fees, rules and any practice directions). The lawyer must
the lawyer must first notify the client that payment of consult and comply with the applicable rules of the court
outstanding fees and disbursements is required and that and any applicable practice directions to determine the
failure to make payment within a reasonable and defined appropriate process that must be followed. As in every
time will result in the lawyer ending the retainer. The case, the lawyer must not tell the court, the prosecutor, or

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WITHDRAWAL FROM REPRESENTATION CHAPTER 10

other parties to the proceeding the reasons for withdrawal 5. Leaving a law firm — r. 3.7-7A and
or disclose any confidential client information unless such commentary and r. 3.7-7B
disclosure is justified or permitted under the Rules. A lawyer-client relationship may be terminated when a
lawyer leaves a firm to practise law or provide legal
3.2 Withdrawal not permitted — r. 3.7-5
services elsewhere. Since the client’s interests are
A lawyer acting in a criminal matter may not withdraw for paramount and clients are entitled to decide whom to
non-payment of fees if the interval between the trial date retain without undue influence or pressure, the client
and the intended withdrawal is insufficient to enable the should be provided with sufficient information to make an
client to retain another licensee or to allow the new informed decision about whether to continue with the
licensee to prepare for trial and an adjournment of the lawyer, remain with the firm, or retain a new licensee. In
trial date cannot be obtained without adversely affecting these situations, both the lawyer and the firm have
the client’s interests. obligations to ensure the clients’ rights and interests are
protected.
3.3 Withdrawal with permission of the court
— r. 3.7-6 and commentary The Rules provide that when a lawyer leaves a firm, the
If the interval between the trial date and the intended lawyer and the “remaining lawyers” must
withdrawal is not sufficient to allow the client to retain ƒ ensure that “affected clients” are given reasonable
another licensee and to allow the new licensee to prepare notice that the lawyer is leaving the firm;
for trial, a lawyer acting in a criminal matter may ƒ advise the affected clients of their options for
withdraw for adequate cause other than non-payment of retaining other representation to handle their legal
fees only with the permission of the court. Unless matters; and
instructed otherwise by the client, the lawyer should ƒ take reasonable steps to obtain instructions from
attempt to have the trial date adjourned in such each of the affected clients as to whom each wishes
circumstances. Where the lawyer concludes that an to retain to act in such matters.
application to the court for leave to withdraw is required, Rule 3.7-7A defines “affected client” as a client of the firm
the lawyer should promptly inform Crown counsel and the who has a matter that the lawyer leaving the firm
court of the intention to apply for leave in order to (departing lawyer) is handling or has substantial
minimize any inconvenience to the court and witnesses. responsibility over. “Remaining lawyers” is defined as
both the lawyers who have, or are intended by the firm to
4. Mandatory withdrawal — r. 3.7-7 and
commentary
have, conduct of an affected client’s matter and the
lawyers in the firm who have direct and indirect
Situations may also arise where the lawyer must withdraw management responsibility in respect of the practice of the
from representing a client even if the lawyer or client departing lawyer.
wishes to continue with the retainer. Subject to the rules
about criminal proceedings and the direction of the The departing lawyer and the remaining lawyers should
tribunal, the lawyer must withdraw from representing a work cooperatively to ensure that affected clients receive
client in any of the following circumstances: the necessary information on the available options. It is
preferable for the departing lawyer and the remaining
ƒ The client discharges the lawyer, regardless of the lawyers to prepare a joint notification setting out such
reason.
information. Where joint notification is not feasible, the
ƒ The client’s instructions require the lawyer to act following factors should be considered in determining
contrary to the Rules or by-laws made under the who should notify the affected clients:
Law Society Act.
ƒ The lawyer is not competent to continue to handle ƒ the extent of the departing lawyer’s work for the
the matter. affected client;
ƒ the affected client’s relationship with other lawyers
Depending on the circumstances, failure to withdraw in
in the firm; and
compliance with the Rules may be considered professional
misconduct. Lawyers who are unsure whether a particular ƒ access to the affected client’s contact information.
situation meets the criteria for mandatory withdrawal are If an affected client decides to remain with the departing
advised to review the Rules carefully, speak with a senior lawyer, the information provided to the client should
lawyer, or contact the Law Society of Ontario’s Practice include written authorizations to be executed by the client
Management Helpline. to allow for the transfer of files and client property. Where
an affected client chooses to remain with the firm, the firm
should consider whether it is reasonable in the

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CHAPTER 10 PROFESSIONAL RESPONSIBILITY

circumstances to charge the client for time expended by would materially prejudice the client’s position in any
another lawyer to become familiar with the file. In all uncompleted matter. Furthermore, in the event of
cases, the situation should be managed in a way that conflicting claims to papers or property subject to a
minimizes expense and avoids prejudice to the affected lawyer’s right of lien, the lawyer should make every effort
client. to have the claimants settle the dispute.
The principles outlined above apply to the dissolution of a These rules on manner of withdrawal apply, with some
firm where the lawyer-client relationship may end with necessary modifications, when withdrawal results from
one or more of the lawyers involved in the retainer. The the lawyer leaving a firm or the dissolution of a law firm.
clients should be notified of the dissolution and provided
Co-operation with the successor legal practitioner will
with sufficient information to decide whom to retain. The
normally include providing any memoranda of fact and
lawyers who are no longer retained by the clients should
law prepared by the lawyer in connection with the client’s
try to minimize expense and avoid prejudice to the clients.
case, but confidential information not clearly related to
These rules do not apply, however, to a lawyer leaving a the matter should not be divulged without the client’s
government, a Crown corporation, or another public body written consent.
nor to a lawyer employed as in-house counsel for a
corporation or other organization. 6.1 Confidentiality upon withdrawal —
r. 3.3-1 and commentary
6. Manner of withdrawal — rr. 3.7-8–3.7-9 As mentioned previously in these Study Materials, the
and commentary
duty of confidentiality continues indefinitely after the
When a lawyer withdraws from representing a client, for lawyer-client relationship ends even if differences have
whatever reason, the lawyer must try to minimize expense, arisen between the lawyer and client. Upon withdrawal,
avoid prejudice to the client, and do all that can reasonably the lawyer must not disclose any information regarding
be done to assist in the smooth transfer of the matter to the client that was obtained during the professional
the successor legal practitioner or, if none, to the client. relationship unless disclosure is authorized by the client
or justified or permitted under s. 3.3 of the Rules.
When a lawyer withdraws or is discharged by the client,
Accordingly, the lawyer must generally not reveal the
the lawyer must do all of the following:
reason for withdrawal to the successor legal practitioner,
ƒ notify the client in writing that the lawyer has parties to the proceeding, or tribunal.
withdrawn and the reasons for the withdrawal and,
in the case of litigation, that the client should expect 6.2 Written confirmation of file transfer
that the hearing or trial will proceed on the date
scheduled and that the client should retain a new If a lawyer’s services are terminated while the client’s
legal practitioner promptly; matter is ongoing and the client requests that the matter
ƒ deliver to the client all papers and property to which be transferred to a new legal practitioner, the lawyer
the client is entitled or as per the client’s orders should obtain a written authorization signed by the client
(subject to the lawyer’s right of lien); for the transfer of the client file to the successor legal
ƒ give the client all information that may be required practitioner. If the file is to be delivered to the client
in connection with the case or matter (subject to any personally, the lawyer should obtain the client’s written
applicable trust conditions); acknowledgement confirming that the client has received
ƒ account for all funds of the client that the lawyer has the file from the lawyer. Where the client also requests
or previously held or dealt with, including the copies of documents from the client file that belong to the
refund of any remuneration not earned by the lawyer, the lawyer may choose to provide these and should
lawyer during the representation; discuss the cost of producing them, if any, with the client
ƒ promptly render an account for outstanding fees (see Chapter 13 (Practice management) of these Study
and disbursements; Materials for further details).
ƒ cooperate with the successor legal practitioner to
minimize expense and avoid prejudice to the client; 7. Duties of a successor lawyer — r. 3.7-10
and and commentary

ƒ comply with the applicable rules of court. A lawyer who is contacted by a prospective client who was
represented by another licensee has obligations as the
Where the lawyer may be able to assert a solicitor’s lien for
successor lawyer. Before accepting the retainer, the
unpaid fees and disbursements, the lawyer should
successor lawyer must ensure that the client’s former
consider the effect of its enforcement on the client’s
licensee approves, has withdrawn, or has been discharged
position. The lawyer should not enforce a lien if doing so
by the client. It is appropriate for the successor lawyer to

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WITHDRAWAL FROM REPRESENTATION CHAPTER 10

urge the client to settle or take reasonable steps towards trial or hearing is approaching or in progress, or if the
settling or securing any outstanding accounts of the client would otherwise be prejudiced, an outstanding
former licensee, especially if the former licensee withdrew account should not interfere with the successor lawyer’s
for good cause or was discharged arbitrarily. However, if a representation of the client.

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 Chapter 11
Duty to others

Though the lawyer’s first duty is to the client, lawyers have consuming than dealing with the consequences of failing
concurrent duties to others. These duties may be related to respond, such as a discipline hearing.
to the administration of justice, to other individuals
1.2 Unauthorized practice of law or
licensed by the Law Society of Ontario, to the legal
provision of legal services — r. 7.6-1
professions at large, or to the Law Society itself.
and commentary
1. Duty to the Law Society Lawyers have a duty to prevent the unauthorized practice
Both lawyers and paralegals have the privilege of of law and the unauthorized provision of legal services as
practising law and providing legal services to the public part of their obligation to the administration of justice.
because they have met the Law Society’s competence and Unlicensed individuals who claim to practise law or
professional responsibility requirements. In accepting a provide legal services are not subject to the Law Society’s
licence to practise law or provide legal services, they have control, regulation, and discipline, which exist to protect
also agreed to submit to the Law Society’s authority to the public. Such controls and regulations include the
govern their conduct. Lawyers owe certain duties to the minimum standards of competence and the duty to act
Law Society so that it can effectively and efficiently carry only in the best interests of the client according to law.
out its mandate to govern the legal professions in the Though an unlicensed individual may seem to have
public interest. Much of the lawyer’s duty to the Law technical skill or ability, the client who hires such an
Society focuses on measures to protect the public from individual has none of the safeguards available to the
inappropriate licensee conduct. The lawyer’s duties to the clients of regulated legal service providers, including
Law Society include the obligations to ƒ the protection and benefit of the lawyer-client or
paralegal-client relationship, including the duties
ƒ respond promptly and completely to the Law
owed to the client by the lawyer or paralegal;
Society;
ƒ options for assessing, reviewing, or disputing a legal
ƒ assist the Law Society in preventing the
services bill;
unauthorized practice of law or provision of legal
services; ƒ rules regarding the protection of confidential client
information;
ƒ obtain the Law Society’s permission to work with or
employ a person who is no longer authorized to ƒ rules regarding the protection of client funds and
practise law or provide legal services; property, including the maintenance and operation
of trust accounts;
ƒ cease practising law when the lawyer’s licence is
suspended or otherwise restricted by the Law ƒ mandatory professional liability insurance coverage;
Society or via the lawyer’s undertaking; and and
ƒ submit to the disciplinary authority of the Law ƒ a compensation fund for clients who have lost
Society. money because of dishonest licensees.

1.1 Responding promptly and completely — To protect the public interest, lawyers who suspect that an
r. 7.1-1 unlicensed individual is practising law or providing legal
services must advise the Law Society. A lawyer is similarly
Lawyers must reply promptly and completely to any obligated to advise the Law Society if the lawyer learns
communication from the Law Society in which a response that a paralegal is providing legal services outside the
is requested, regardless of the topic. Failure to respond permitted scope of practice as outlined in By-Law 4, made
promptly and completely to the Law Society is a breach of under the Law Society Act (Act). Such activities would
the Rules of Professional Conduct (Rules) and is grounds also be considered the unauthorized practice of law or
for disciplinary action by the Law Society. For example, a provision of legal services.
lawyer who fails to respond to a Law Society inquiry about
a complaint may be disciplined by the Law Society for 1.3 Working with or employing
failure to respond promptly and completely, regardless of unauthorized persons — r. 7.6-1.1
the merits or outcome of the original complaint. The protections mentioned above are only available to
Complying with this obligation is often less time clients of licensees. In order to avoid confusion about
whether a person is a licensee, lawyers shall not retain,

77
CHAPTER 11 PROFESSIONAL RESPONSIBILITY

share office space with, use the services of, partner or or property in trust. These obligations are outlined in By-
associate with, or employ in any capacity having to do with Law 9, made under the Act.
the practice of law or provision of legal services a licensee
in Ontario or elsewhere whose licence has been revoked or 1.5 Disciplinary authority — rr. 1.1-1 and
2.1-1 and commentary and s. 7.8.2
suspended or who is no longer licensed by the Law Society
without the express approval of a panel of the Hearing The Law Society has the authority to regulate and
Division of the Law Society Tribunal. discipline every lawyer, in whatever jurisdiction the
lawyer’s activities take place, regardless of whether the
The rule applies whether the individual’s licence was given
lawyer is acting in a professional capacity. A lawyer may
up voluntarily or was revoked or suspended by the Law
be disciplined by the Law Society for either professional
Society. The rule is broad and prevents lawyers from
misconduct or conduct unbecoming a barrister or
hiring a former or suspended licensee in any capacity
solicitor. Both are prohibited by s. 33 of the Act. While
unless the Law Society Tribunal expressly approves. It is
professional misconduct relates to actions lawyers may
meant to protect both the public and the employing lawyer
take in the course of their practice, conduct unbecoming
from harm that may be done by an individual who is no
includes actions lawyers may take in their personal lives.
longer licensed to practise law or provide legal services to
the public but may be tempted to do so while working at a “Professional misconduct” is defined in the Rules as
firm. conduct by a lawyer in the lawyer’s professional capacity
“that tends to bring discredit upon the legal profession”
Due to the danger that a lawyer’s unauthorized employee
and includes
may provide legal services to clients in breach of this rule,
express approval is required from a panel of the Hearing ƒ violating or attempting to violate any of the Rules or
Division of the Law Society Tribunal before a lawyer may a requirement of the Act, its regulations, or its by­
laws;
employ that person in any capacity having to do with the
practice of law or provision of legal services. The lawyer’s ƒ knowingly assisting or inducing another legal
duty to prevent the unauthorized practice of law or practitioner (i.e., a lawyer licensed in Ontario or
another Canadian jurisdiction or a licensed
provision of legal services is akin to the obligation to
paralegal) to violate or attempt to violate any of the
supervise non-licensee employees. Supervision of non- Rules, the Paralegal Rules of Conduct, or a
licensee employees is outlined in By-Law 7.1, made under requirement of the Act, its regulations, or its by­
the Act, and discussed more fully in Chapter 13 (Practice laws;
management) of these Study Materials. ƒ knowingly assisting or inducing a non-licensee (i.e.,
non-paralegal or non-lawyer) partner or associate of
1.4 Licence suspended or restricted, a multi-discipline practice to violate or attempt to
undertaking not to practice law — violate any of the Rules or a requirement of the Act,
rr. 7.6-1.2–7.6-1.4; By-Law 7.1, Part II; its regulations, or its by-laws;
By-Law 9, Part II.1
ƒ misappropriating or otherwise dealing dishonestly
A lawyer whose licence to practise law or provide legal with a client’s or third party’s money or property;
services has been suspended or restricted by an ƒ engaging in conduct that is prejudicial to the
undertaking to the Law Society must comply with the administration of justice;
undertaking given and refrain from practising law or ƒ stating or implying an ability to improperly
providing legal services that the lawyer is no longer influence a government agency or official; and
entitled to offer.
ƒ knowingly assisting a judge or judicial officer in
Lawyers who have been suspended or who have given the conduct that is a violation of applicable rules of
Law Society an undertaking not to practise law or provide judicial conduct or other law.
legal services must not “Conduct unbecoming a barrister or solicitor” is also
ƒ practise law or provide legal services, or defined in the Rules and means conduct, including
conduct in a lawyer’s personal or private capacity, “that
ƒ represent or hold themselves out as individuals who
tends to bring discredit upon the legal profession.” For
are entitled to practise law or provide legal services.
example, this includes
A lawyer whose licence has been suspended, regardless of
ƒ committing a criminal act that reflects adversely on
the reason, also has specific obligations to disclose the
the lawyer’s honesty, trustworthiness, or fitness as a
lawyer’s suspended status to prospective, existing, and lawyer;
former clients and to engage another lawyer to complete
certain tasks related to any existing client files. There are
additional obligations if the lawyer is holding client funds

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DUTY TO OTHERS CHAPTER 11

ƒ taking improper advantage of the youth, ƒ any situation where a licensee’s clients are likely to
inexperience, lack of education, unsophistication, ill be severely prejudiced.
health, or unbusinesslike habits of another; or
The lawyer’s report must not be made with malice or
ƒ engaging in conduct involving dishonesty or ulterior motive. Note that this rule is not meant to
conduct that undermines the administration of interfere with the lawyer-client relationship.
justice.
The Rules cannot address every situation. Lawyers should The obligation to report misconduct applies to the lawyer’s
follow both the letter and the spirit of the Rules. The letter own conduct and that of other licensees. A lawyer who fails
of the rule is the meaning of the rule as it is written. The to report such conduct to the Law Society when the lawyer
spirit of the rule is the intent, meaning, or importance of is aware of it is in violation of this rule and may be subject
the rule, even though it may not be explicit or stated in the to discipline. If a lawyer is unsure as to whether to report
written version of the rule. certain conduct, the lawyer should consider seeking the
advice of the Law Society. The lawyer may do so by
Generally, where a lawyer’s conduct in a private or contacting the Law Society’s Practice Management
personal capacity does not bring into question the lawyer’s Helpline either directly or indirectly (e.g., through another
professional integrity, the Law Society will not review the licensee).
conduct. However, if a client’s awareness of a lawyer’s
conduct would likely impair the client’s trust in the lawyer, 2.2 Encouraging client to report dishonest
the Law Society may be justified in taking disciplinary conduct — rr. 7.1-4–7.1-4.3
action whether the conduct occurred in the lawyer’s If a lawyer’s client has a claim or complaint against an
professional or personal sphere. apparently dishonest licensee, the lawyer must encourage
the client to report the facts to the Law Society as soon as
2. Duty to the legal professions
reasonably practicable. If the client refuses to report to the
Duties to the professions specifically outlined in the Rules Law Society and wishes to pursue private remedies, the
include the lawyer’s obligation to lawyer must take each of the steps outlined below:
ƒ report licensee misconduct; ƒ Inform the client of the Law Society’s Compensation
ƒ encourage clients to report licensee misconduct; Fund and its policies.

ƒ report criminal charges or convictions; and ƒ Obtain the client’s written instructions to proceed
with the client’s claim without notice to the Law
ƒ report errors and omissions. Society.
2.1 Reporting misconduct — r. 7.1-3 and ƒ Inform the client of the provisions of the Criminal
commentary Code (Code) (s. 141) dealing with the concealment of
an indictable offence in return for an agreement to
Detecting and preventing professional misconduct at an obtain valuable consideration (money, materials, or
early stage reduces the risk to clients and prevents damage something else that can be valued in money’s
to the reputation of the legal professions. Lawyers must worth).
assist the Law Society in protecting the public and the ƒ If the client wishes to pursue a private agreement
integrity of the legal professions by reporting misconduct with the apparently dishonest licensee and the
of a serious nature by licensees. Unless it would be agreement constitutes a violation of s. 141 of the
unlawful to do so or it would involve a breach of solicitor- Code, withdraw from representation.
client privilege, a lawyer must report to the Law Society 2.3 Reporting criminal charges or
ƒ the inappropriate removal or use of moneys from convictions — rr. 7.1-3, 7.1-4.4 and
trust; commentary; By-Law 8, s. 2

ƒ the abandonment of a law or legal services practice As outlined in s. 2 of By-Law 8, made under the Act,
by a lawyer or a legal services practice by a licensees have a duty to report themselves to the Law
paralegal; Society if certain charges have been laid against them.
ƒ involvement in serious criminal activity related to a Licensees must send written notification to the Law
licensee’s practice; Society to advise of a charge made against them alleging
ƒ conduct that raises a substantial question as to that they committed
another licensee’s honesty, trustworthiness, or
ƒ an indictable offence under the Code;
competency as a licensee;
ƒ an offence under the Controlled Drugs and
ƒ conduct that raises a substantial question about a
Substances Act;
licensee’s capacity to provide professional services;
and

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CHAPTER 11 PROFESSIONAL RESPONSIBILITY

ƒ an offence under the Income Tax Act (Canada) or When a lawyer discovers an error or omission, the lawyer
under an Act of the legislature of a province or has additional duties to the liability insurer for the legal
territory of Canada in respect of the income tax law profession, the Lawyers’ Professional Indemnity
of that province or territory, where the charge
explicitly or implicitly alleges dishonesty on the part Company (LAWPRO), or any excess insurer. The lawyer
of the licensee or relates in any way to the licensee’s must
professional business; ƒ subject to the rules in s. 3.3 regarding
ƒ an offence under an Act of the legislature of a confidentiality, promptly give notice of any
province or territory of Canada in respect of the circumstance that the lawyer may reasonably expect
securities law of the province or territory, where the to give rise to a claim to an insurer or another
charge explicitly or implicitly alleges dishonesty on indemnitor (so that the client’s protection from that
the part of the licensee or relates in any way to the source will not be prejudiced);
licensee’s professional business; or ƒ where a claim of professional negligence is made
ƒ an offence under another Act of Parliament or against the lawyer, assist and cooperate with the
under another Act of the legislature of a province or insurer or other indemnitor as necessary to enable
territory of Canada, where the charge explicitly or the claim to be dealt with promptly;
implicitly alleges dishonesty on the part of the ƒ if the lawyer is not indemnified or not fully
licensee or relates in any way to the licensee’s indemnified for a client’s error or omission claim,
professional business. deal with the claim swiftly and refrain from taking
An “indictable offence” excludes an offence that is unfair advantage that would defeat or impair the
punishable only by summary conviction but includes client’s claim;
ƒ in cases where liability is clear and the insurer or
ƒ an offence for which an offender may be prosecuted
other indemnitor is prepared to pay its portion of
only by indictment; and
the claim, make arrangements to pay the remaining
ƒ an offence for which an offender may be prosecuted balance of the client’s claim (including payment of
by indictment or that is punishable by summary the deductible under a professional liability
conviction, at the instance of the prosecution. insurance policy).
Lawyers must also inform the Law Society in writing of the There may be occasions when a lawyer believes that the
decision and the final result of any charge mentioned lawyer may be liable for damages to the client when no
above. Lawyers must report a charge as soon as reasonably liability actually exists. The requirement to inform and
practicable after receiving notice of the charge and must cooperate with the insurer preserves the rights of the
report the outcome of a charge as soon as reasonably insurer but must not interfere with the lawyer’s
practicable after receiving notice of the disposition. obligations to the client.
If the offence is being pursued by private prosecution and 3. Duty to lawyers and others
the charge against the lawyer is under s. 504 of the Code
(laying of an information) other than an information Lawyers have duties to individual licensees, other legal
referred to in s. 507(1) of the Code, the lawyer is only practitioners (i.e., lawyers licensed in Canada but outside
required to inform the Law Society of the charge and its of Ontario), and other individuals that they may deal with
outcome if the charge results in a finding of guilt or a while practising law. The Rules outline the lawyer’s
conviction. obligations concerning
ƒ courtesy and good faith;
Note that the by-law requires lawyers to self-report the
above criminal charges or convictions. A lawyer is only ƒ communications with others, generally;
required to report another licensee involved in serious ƒ communications with represented persons or
criminal activity if it is related to the other licensee’s organizations and the provision of second opinions;
practice. ƒ undertakings, trust conditions, and other
professional promises; and
2.4 Reporting errors and omissions — s. 7.8
ƒ financial obligations.
As outlined previously in these Study Materials, when a
lawyer realizes that an error or omission that cannot be 3.1 Courtesy and good faith —
rr. 7.2-1–7.2-3 and commentary
rectified readily has occurred, the lawyer has a duty to
promptly advise the client of the error or omission, to A lawyer must be courteous and civil and act in good faith
recommend that the client obtain legal advice from an with all persons with whom the lawyer has dealings in the
independent lawyer regarding any rights that the client course of his or her practice. Discourteous and uncivil
may have arising from the error or omission, and to advise behaviour between licensees and other legal practitioners
that the lawyer may no longer be able to act for the client. weakens the public’s respect for the legal professions and

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DUTY TO OTHERS CHAPTER 11

may impair the lawyer’s ability to fully serve the client in ƒ approach, communicate, or deal with the person on
an efficient manner. the matter; or
ƒ attempt to negotiate or compromise the matter
The Rules set out the type of conduct that is prohibited. directly with the person.
Lawyers who engage in this conduct violate the Rules and
will be subject to the Law Society’s review if a complaint is The prohibition concerns communications with any
made. In the course of professional practice, lawyers must person who is represented by a legal practitioner; and it
not applies where the lawyer knows or has substantial reason
to believe that the person is represented in the matter to
ƒ engage in “sharp practice” (what constitutes sharp be discussed, whether or not the person is a party to the
practice will depend in part on the norms of practice
matter to which the communication relates. A lawyer may
for a particular area of law);
communicate with a represented person about matters
ƒ take advantage of or act without fair warning upon outside the representation. This rule does not prevent
another legal practitioner’s slip or mistake that does
not go to the merits of the case or involve a sacrifice clients and parties to a matter from communicating
of the client’s rights; directly with each other.
ƒ deny reasonable requests from other legal A lawyer may approach, communicate, or deal directly
practitioners concerning trial dates, adjournments, with a person who is receiving legal services from another
the waiver of procedural formalities, and similar legal practitioner under a limited scope retainer without
matters that do not prejudice the client’s rights; and
the consent of the legal practitioner. However, a lawyer is
ƒ use any device to record a conversation with a client prohibited from doing so if the lawyer receives written
or another legal practitioner without that person’s notice that approaching, communicating, or dealing with
prior knowledge, even if doing so is lawful.
the person falls within the scope of the limited scope
3.2 Communications — rr. 7.2-4–7.2-5 retainer being provided by the other legal practitioner.

The obligation to behave with courtesy and civility when Provided that the lawyer is not otherwise interested in the
dealing with others also applies to any communications matter, a lawyer may provide a second legal opinion to a
from the lawyer. In the course of professional practice, a person represented by a legal practitioner. However, the
lawyer shall not communicate or correspond with a client, obligation to render competent service requires that the
another legal practitioner, or any other person in a opinion be based on sufficient information, which may
manner that is abusive, offensive, or otherwise include facts that can only be obtained through
inconsistent with the proper tone of a professional consultation with the first legal practitioner involved. The
communication from a lawyer. lawyer should advise the client whether this is necessary
and, unless the client instructs otherwise, should consult
A lawyer must also answer with reasonable promptness all
the first legal practitioner in a manner consistent with the
professional letters or communications from other legal
lawyer’s duty of confidentiality.
practitioners that require an answer and be punctual in
fulfilling all commitments. 3.3.1 Communications with persons
associated with a represented
Where a licensee is not communicating with a lawyer with organization — rr. 7.2-8–7.2-8.2 and
courtesy and civility, the lawyer may consider reminding commentaries
the other licensee of the duties to be courteous and civil
with reference to the Rules. Alternatively, or if this Lawyers face a similar restriction regarding
reminder is unsuccessful, the lawyer may consider making communications with a represented corporation or other
a complaint against the other licensee to the Law Society. organization, such as partnerships or limited
partnerships, associations, unions, funds, trusts,
3.3 Communications with represented cooperatives, unincorporated associations, government
person, second opinions — rr. 7.2-6– departments and agencies, regulatory bodies, and sole
7.2-7 and commentaries proprietorships. The restriction applies whether the legal
The Rules impose specific obligations on a lawyer who practitioner is employed by the organization in-house or
wishes to communicate with a represented person or has been retained separately to act in the particular
organization. The lawyer must respect the relationship matter.
between the other parties and their legal practitioners. Unless the legal practitioner representing a corporation or
Unless the legal practitioner representing a person in a organization in a matter consents or a lawyer is otherwise
matter consents, and subject to r. 7.2-7 regarding second authorized or required by law, a lawyer shall not
opinions and r. 7.2-6A regarding limited scope retainers,
a lawyer must not

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CHAPTER 11 PROFESSIONAL RESPONSIBILITY

communicate, facilitate communication, or deal with any 3.4 Undertakings and trust conditions —
person rr. 5.1-6 and 7.2-11 and commentaries

ƒ who is a director, an officer, or another person Unless clearly qualified, a lawyer’s undertaking is the
authorized to act on behalf of the corporation or lawyer’s personal promise and responsibility. Lawyers
organization; must not give an undertaking that cannot be fulfilled,
ƒ who is likely involved in decision making for the must fulfill every undertaking given in a timely manner,
corporation or organization or provides advice in and must honour every trust condition once accepted. In
relation to the particular matter; the course of litigation, a lawyer must strictly and
ƒ whose act or omission may be binding on or scrupulously fulfill any undertaking given and honour any
imputed to the corporation or organization for the trust condition once accepted. This also applies to any
purposes of its liability; or professional or practice-related promise the lawyer may
ƒ who supervises, directs, or regularly consults with give.
the legal practitioner and makes decisions based on
the legal practitioner’s advice. The person who accepts a lawyer’s undertaking or promise
is entitled to expect that lawyer to personally carry it out.
The prohibition on communications with a represented
Using the phrase “on behalf of my client” even in the
corporation or organization applies only where the lawyer
undertaking itself does not release a lawyer from the
knows that the entity is represented in the matter to be
obligation to honour it. If a lawyer does not intend to take
discussed. The lawyer must have actual knowledge of the
personal responsibility, this should be clearly stated in the
fact of the representation, and actual knowledge may be
undertaking or promise provided.
inferred from the circumstances.
All undertakings and other practice-related promises
Where a person described above is individually
should be written or confirmed in writing, be
represented in the matter by a legal practitioner, that legal
unambiguous in their terms, and include a time period for
practitioner’s consent to the communication is sufficient
fulfillment. It may be appropriate to provide for
if the communication is about the individual’s personal
contingencies (e.g., if the obligations in the undertaking
interests. However, where the legal representation is only
rely on certain events occurring, indicate what will happen
with respect to the personal interests of the individual and
if these events do not occur), and before accepting an
the intended communication concerns the interests of the
undertaking or promise, the lawyer should confirm that
corporation or organization, consent of the corporation’s
the individual providing it is a licensee.
or organization’s legal practitioner would be required. A
lawyer may communicate directly with such individuals Lawyers who act in real estate transactions using the
about matters that are outside the representation and may system for the electronic registration of title documents
communicate with any person not actively involved in the (e-reg™) are required to sign (with client consent) and be
matter. Furthermore, a lawyer may communicate with a bound by a document registration agreement (DRA). The
person in a corporation or other organization, other than DRA contains undertakings that will become the lawyer’s
those referred to in r. 7.2-8, even if the corporation or professional responsibility to fulfill upon the signing of the
organization is represented by a legal practitioner. The DRA.
commentary clarifies the rule and provides examples as
As with undertakings, a trust condition, once accepted, is
they relate to the context of unions, governments, and
an obligation on the accepting lawyer that the lawyer must
municipalities.
honour personally. As a result, a lawyer should not impose
Where a lawyer representing a corporation or other or accept trust conditions that are unreasonable or cannot
organization has also been retained to represent its be fulfilled personally. When a lawyer accepts property
employees, the lawyer must comply with the Rules as they subject to trust conditions, the lawyer must fully comply
apply to avoiding conflicts of interest (s. 3.4), including with the conditions, even if the conditions later appear
joint retainers. A lawyer must not act for an employee of a unreasonable.
client unless the rules in s. 3.4 have been complied with
Trust conditions should be clear, unambiguous, and
and must not be retained by an employee solely for the
explicit and should state the time within which the
purpose of sheltering factual information from another
conditions must be met. Trust conditions should be
party.
imposed and accepted in writing and be communicated to
the other party at the time the property is delivered.
Variations to the trust conditions may be made with the
consent of the person imposing them. These changes
should also be confirmed in writing.

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DUTY TO OTHERS CHAPTER 11

A tribunal may enforce undertakings, trust conditions, or ƒ jeopardize the lawyer’s professional integrity,
other practice-related promises given by a lawyer. The independence, or competence; or
lawyer may be brought before a tribunal to explain why the ƒ impair the exercise of the lawyer’s independent
undertaking, trust condition, or promise was breached judgment on behalf of a client.
and may be ordered to take steps to satisfy it and/or pay The term “outside interest” covers the widest possible
damages caused by the breach. The Law Society may also range of activities and includes those that may overlap
discipline a lawyer for a breach, which may result in a with the practice of law or provision of legal services, such
finding of professional misconduct. as engaging in the mortgage business or writing on legal
subjects, as well as activities that have less or no
3.5 Financial obligations — r. 7.1-2 and
commentary connection to a lawyer’s practice, such as a career in
politics or the performing arts. If a lawyer is acting in a
A lawyer must promptly meet all financial obligations matter that involves the lawyer’s outside interest, the
incurred on behalf of a client in the course of practice lawyer should be alert to potential conflicts of interest. For
unless, before incurring such an obligation, the lawyer more information on conflicts of interest, see Chapter 6
clearly indicates in writing to the person to whom it is to (Conflicts of interest) of these Study Materials.
be owed that it is not a personal obligation. This is a
professional duty that is separate from any legal liability A lawyer must not be involved in any outside interest in
and includes the responsibility to make payments to third any way that makes it difficult to distinguish in which
parties that the lawyer assumed or undertook on the capacity the lawyer is acting or that gives rise to a conflict
client’s behalf (e.g., experts or consultants). of interest. Where the outside interest is not related to the
legal services being performed for clients, ethical
4. Duty to uphold the integrity of the considerations will usually not arise unless the lawyer’s
profession — rr. 2.1-1–2.1-2 conduct might bring the lawyer or the legal professions
As explained previously in these Study Materials, lawyers into disrepute or impair the lawyer’s competence.
must fulfill their professional responsibilities to others
4.2 Public office — r. 7.4-1 and commentary
with honour and integrity. Lawyers must uphold the
standards and reputation of the legal professions and A lawyer who is elected or appointed to a legislative or
assist in the advancement of its goals, organizations, and administrative office at any level of government has a duty
institutions. Public confidence in the administration of to uphold the integrity of the legal professions because the
justice and legal professions may be eroded by an lawyer is in the public eye. This duty applies whether or
individual lawyer’s irresponsible conduct. Accordingly, not the office was attained because of the lawyer’s
lawyers should conduct themselves in a way that inspires professional qualifications. Generally, a lawyer in public
the confidence, respect, and trust of clients and the office must properly discharge all official duties while
community. adhering to the same standards of conduct that the Rules
require of lawyers practising law or providing legal
This is especially important when a lawyer becomes services.
involved in activities whereby there may be further
scrutiny of the lawyer’s conduct, professional or Though the Law Society may not be concerned with the
otherwise. The duty to uphold the integrity of the legal way in which a lawyer holding public office carries out
professions applies when the lawyer engages in activities official responsibilities, conduct in office that reflects
related to adversely upon the lawyer’s integrity or professional
competence may be the subject of disciplinary action.
ƒ outside interests;
ƒ public office; 4.3 Public appearances and statements —
s. 7.5
ƒ public appearances and statements; and
ƒ multi-discipline practices. Lawyers may communicate with the media and make
public appearances or statements as long as there is no
4.1 Outside interests — rr. 7.3-1–7.3-2 and violation of the lawyer’s duties to clients, the legal
commentaries professions, the tribunal, and the administration of
Lawyers must not allow activities that are unrelated to the justice.
practice of law to interfere with their obligations under the However, a lawyer is prohibited from communicating
Rules. A lawyer engaged or involved in outside interests information to the media or making any public statements
while also practising law must not allow that outside about a matter that is before a tribunal if the lawyer knows
interest to or should know that the information or statement is likely

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CHAPTER 11 PROFESSIONAL RESPONSIBILITY

to materially prejudice any party’s right to a fair trial or 5.2 Seeking legislative or administrative
hearing. This includes other or related parties, and not just change — rr. 5.6-1–5.6-2 and
the lawyer’s client. When making statements to the public commentary
or the media, lawyers should avoid petty or unsupported Because of training, opportunity, and experience, lawyers
criticisms of fellow licensees, other legal practitioners, the are in a position to observe the workings, strengths, and
tribunal, or the justice system. weaknesses of laws, legal institutions, and public
Before making a statement to the public or the media, the authorities. Lawyers must encourage public respect for
lawyer must be satisfied that doing so is in the client’s best and try to improve the administration of justice, but any
interests and is within the scope of the lawyer’s retainer criticisms and proposals should be bona fide and
with the client. A lawyer should not use public reasoned. A lawyer seeking legislative or administrative
communications about a client’s affairs for self-promotion changes shall disclose the interest being advanced,
and should be aware that the lawyer will normally have no whether the lawyer’s interest, the client’s interest, or the
control over any editing or the context in which any public interest.
statement to the media is ultimately used. 5.3 Security of court facilities — r. 5.6-3
and commentary
5. Duty to the administration of justice
An aspect of supporting the justice system is ensuring that
Admission to and continuance in the practice of law or
its facilities remain safe. If a lawyer reasonably believes
provision of legal services implies on the part of the lawyer
that a dangerous situation is likely to arise at a court
a basic commitment to the concept of equal justice for all
facility, the lawyer must inform the persons having
within an open, ordered, and impartial system. Because of
responsibility for security at the facility and give
this, the lawyer’s responsibilities to the justice system, its
particulars. Where appropriate, the lawyer should
processes, and its participants are greater than those of a
consider requesting added security at the facility and
private citizen. As detailed both in chapters 5 and 7 of the
notifying other licensees that may be affected. As outlined
Rules, the lawyer’s general duty to the administration of
previously in these Study Materials, lawyers must not
justice includes the obligations to
disclose confidential client information unless they are
ƒ encourage respect for the administration of justice; justified or permitted to do so in accordance with s. 3.3 of
ƒ disclose the interest being advanced when seeking the Rules. See Chapter 5 (Confidentiality) of these Study
legislative or administrative change; Materials for more information.
ƒ maintain the security of court facilities;
5.4 Acting as mediator — s. 5.7
ƒ ensure the parties understand the lawyer’s role
when acting as a mediator; and A lawyer who acts as a mediator must remain neutral to
ensure that the mediation process is unbiased and serves
ƒ preserve impartiality of the justice system when
returning to the practice of law from the bench. the administration of justice. When acting as mediator,
the lawyer is not acting for any party in the mediation, and
5.1 Encouraging respect for the the relationship between the parties and the lawyer is not
administration of justice — rr. 5.6-1 a lawyer-client relationship. The lawyer must ensure that
and 7.2-1 and commentaries the parties understand that the role of the mediator is to
Lawyers must encourage public respect for the justice facilitate agreement between the parties and that
system and take steps to try to improve it. Lawyers must communications are not covered by confidentiality or
avoid making irresponsible remarks, criticisms, or lawyer-client privilege (though some other common-law
complaints about the system since they may weaken or privilege may apply).
destroy public confidence in legal institutions or
Generally, a lawyer-mediator should suggest and
authorities. Lawyers should take care when commenting
encourage the parties to seek the advice of separate
on judges or members of a tribunal since they are often
counsel before and during the mediation process if they
restricted by law or by custom from defending themselves.
have not already done so. In acting as a mediator, a lawyer
While lawyers should be available to advise and represent
may give the parties legal information (i.e., general
a client in a complaint involving a legal practitioner, they
information about the law that does not apply to an
should avoid ill-considered or uninformed criticism of the
individual’s specific situation), but should not give the
competence, conduct, advice, or charges of other legal
parties legal advice (i.e., interpretation of the law or
practitioners.
application of legal rules and principles to a particular
situation). However, a lawyer-mediator may give
information on the consequences if the mediation fails.

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DUTY TO OTHERS CHAPTER 11

Where the lawyer-mediator prepares a mediation from appearing as counsel or advocate in any court,
agreement or a draft settlement agreement for review by in chambers, or before any administrative board or
the parties, the lawyer-mediator should advise and tribunal;
encourage the parties to seek separate independent legal ƒ a former judge of the Federal Court, the Tax Court
representation concerning the mediation agreement or of Canada, the Supreme Court of Ontario (Trial
Division), a County or District Court, or the Ontario
the final draft and execution of the settlement agreement.
Court of Justice is prohibited for a period of three
5.5 Retired judges returning to practice — years after leaving the bench from appearing as
s. 7.7 counsel or advocate
— before the court on which the former judge
To preserve the impartiality of the justice system and its served or before any lower court; or
image as such, the Rules provide specific guidance for
— before any administrative board or tribunal
former judges and appellate judges who wish to return to
over which the court on which the former
the practice of law after retiring, resigning, or being judge served exercised an appellate or judicial
removed from the bench. Without the express approval of review jurisdiction.
a panel of the Hearing Division of the Law Society
In all cases, such approval may only be granted under
Tribunal,
exceptional circumstances and may be restricted.
ƒ a former judge of the Supreme Court of Canada,
Court of Appeal for Ontario, Federal Court of
Appeal, or Superior Court of Justice is prohibited

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 Chapter 12
Advocacy

As advocates, lawyers may be required to appear in court, lawyer needs to investigate and find additional facts.
before boards, and in front of administrative tribunals, In conducting the appropriate legal research,
arbitrators, or mediators. Being an effective advocate lawyers may consult or use
involves gathering all the facts, developing a coherent — leading treatises;
theory of the case, and marshalling the evidence in a — legal research databases such as LexisNexis,
persuasive manner. Chapter 5 of the Rules of Professional Quicklaw, CanLII, Hein Online, or Westlaw
Conduct (Rules) outlines the lawyer’s professional Edge Canada; and
responsibilities when acting on behalf of the client as — law library resources and services.
advocate. The obligations set out in the Rules apply ƒ Identify the evidence that is available on each issue
regardless of how informal the proceeding may be and, in in dispute: Lawyers should analyze how they will
some cases, require that lawyers balance their duties to the prove each element of the cause of action or
client with their duties to the tribunal and to the defence. A list should be made of all the facts that
administration of justice. must be proved, and lawyers should ask themselves
how each one will be proved.
1. Theory of the case ƒ Anticipate contrary evidence from other parties:
An effective advocate should take a realistic look at
Being a competent lawyer and effective advocate involves
all the facts, both for and against the client. The
gathering all the facts for and against the client’s position lawyer will determine how to address the strengths
and marshalling the evidence in a persuasive manner. It of the other party’s case and the weaknesses of the
involves developing a coherent theory of the case. The client’s case.
theory of the case is simply the lawyer’s position on all the ƒ Consider whether the remedy requested flows
undisputed and disputed facts that will be presented logically from the theory of the case: The theory of
before the trier of fact. The theory combines the essential the case should provide a reasonable explanation for
facts and the legal position in a way that leads to the all the facts, including facts that are unfavourable to
conclusion that the client’s claim or defence should the client’s case, and should demonstrate that the
client is entitled to the relief requested.
prevail. The other parties to the matter will also have a
theory of the case to support their version of the events. ƒ Assess the strength of the other party’s case: The
The lawyer’s goal as advocate is to make the lawyer’s lawyer should anticipate the other party’s theory of
the case and prepare for it. The lawyer should be
theory more compelling. It is important to start
realistic as to how strong or weak the client’s case is
developing a theory of the case as early as the first client and communicate this to the client. It may be that
interview. settlement would be a better option for the client.

1.1 Developing the theory of the case ƒ Re-evaluate the theory of the case as new
information or facts come to light: It is essential to
The following steps will help the lawyer develop a theory re-evaluate the theory of the case as the matter
of the client’s case: progresses. As new facts come to light, the lawyer
should consider what impact they will have on the
ƒ Investigate the facts: The first step in developing a plausibility of the original theory. Can the theory
theory of the case is a thorough investigation of the accommodate the new facts, or does the theory need
facts. Lawyers should conduct interviews of the to be readjusted? Is further research necessary?
client or witnesses and examine all documents or
other evidence that may have a bearing on the case. The theory of the case should be expressed in one
Lawyers should start an investigation into the facts paragraph. The paragraph should combine the specific
as soon as possible after being retained. They will facts and applicable legal principles to justify the desired
want to ensure that all documents have been legal result. It should lead the tribunal to the conclusion
gathered and preserved to be available at the that the client should succeed.
hearing.
ƒ Conduct legal research and find the relevant law: The theory of the case and the resultant plan and
The lawyer should research the law to determine strategies to achieve the client’s desired outcome should
causes of action or defences that are appropriate be developed in consultation with the client and with the
given the facts. Legal research helps the lawyer client’s consent.
determine what facts are relevant and whether the

87
CHAPTER 12 PROFESSIONAL RESPONSIBILITY

2. Lawyer as advocate — rr. 5.1-1, 5.1-2A, those admissions limit the defences that the lawyer can
and 5.1-4–5.1-6 and commentaries advance on behalf of the client because the lawyer may
When acting as an advocate, the lawyer must represent the only put forward a defence that is consistent with the
client resolutely and honourably within the limits of the client’s admissions. For example, a lawyer cannot suggest
law while treating the tribunal with candour, fairness, that someone else committed the offence or set up a
courtesy, and respect. Lawyers must also be courteous and defence of alibi. In this circumstance, the lawyer may only
civil and act in good faith to the tribunal and all other test the evidence given by each witness and argue that the
persons with whom the lawyer has dealings. evidence, as a whole, is insufficient to prove that the client
is guilty. Lawyers who advocate for an accused should
When acting as an advocate, a lawyer has the duty to discuss these limitations with every client and consider
ƒ raise fearlessly every issue, advance every argument, confirming such discussions in writing.
and ask every question that the lawyer thinks will
help the client’s case, however distasteful; 2.2 Duty as prosecutor — r. 5.1-3 and
commentary
ƒ endeavour to obtain for the client the benefit of
every remedy and defence authorized by law; When engaged as a prosecutor, the lawyer is an advocate
ƒ never waive or abandon a client’s legal rights for the public and the administration of justice. The lawyer
without the client’s informed consent; must act resolutely and honourably within the limits of the
ƒ avoid and discourage the client from resorting to law. The prosecutor’s prime duty is not to seek a
frivolous or vexatious objections; conviction but to see that justice is done through a fair trial
ƒ avoid and discourage the client from attempts to on the merits. Because a prosecutor exercises a public
gain an advantage from mistakes or oversights function with substantial discretion and power, a
made by the other side that do not go to the merits prosecutor must act and treat the accused fairly and
of the client’s case; dispassionately.
ƒ avoid and discourage the client from using a
3. Lawyers and the tribunal process —
strategy designed only to delay or harass the other
r. 5.1-2
side; and
ƒ not counsel or participate in the concealment, Despite a lawyer’s duty to the client, a lawyer is limited as
destruction, or alteration of incriminating physical to what the lawyer may do to advocate for the client’s cause
evidence. before a tribunal. Generally, the lawyer shall not
As advocate, the lawyer will provide advice and opinions ƒ abuse the tribunal process;
to the client and may make submissions to a tribunal
ƒ knowingly deceive or mislead the tribunal;
regarding the client’s matter. Lawyers may express their
ƒ directly or indirectly influence the tribunal other
professional opinions but should avoid expressing
than by means of open persuasion as an advocate;
personal views on the merits of the client’s case.
ƒ knowingly assist or permit the client to do anything
The Rules also specify lawyers’ obligations to disclose the lawyer considers to be dishonest or
errors or omissions and to fulfill all undertakings and trust dishonourable;
conditions where they relate to their role as advocate. ƒ mistreat witnesses; and
2.1 Duty as defence counsel — commentary ƒ appear before a court or tribunal while under the
r. 5.1-1 influence of alcohol or drugs.

The lawyer’s duty when defending an accused person is to The lawyer should remember that inappropriate
protect the client as far as possible from being convicted behaviour before a tribunal or judge may result in
of an offence, except by a tribunal of competent discipline by the Law Society of Ontario, even in cases
jurisdiction and upon legal evidence sufficient to support where the tribunal member or judge says nothing to the
a conviction for that offence. Generally, defence counsel lawyer about the conduct.
may put forward any defence and may rely on any 3.1 Shall not abuse the tribunal process —
evidence not known to be false or fraudulent. However, r. 3.2-5 and commentary, and rr. 5.1-
admissions made by the accused client to a lawyer may 2(a) and (n)
impose strict limitations on the lawyer’s conduct of the
Though the proceeding itself may be legal, a lawyer is not
client’s defence.
permitted to begin or continue a proceeding motivated by
If the client has admitted to the lawyer the elements malice on the part of the client and brought solely for the
necessary to constitute the offence and the lawyer is purpose of injuring another party. A lawyer should not
convinced that the admissions are true and voluntary, assist a client to bring a claim that the lawyer believes has

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ADVOCACY CHAPTER 12

no merit since such claims waste the time of the tribunal To ensure the independence and impartiality of a tribunal,
and its officers and do not further the cause of justice. This there should be no personal connection between a tribunal
includes matters where the client is not entitled to what member or judge and any of the parties in the proceeding
the client is asking for. or their licensees.
When representing a client, a lawyer is prohibited, without Unless all parties consent and it is in the interests of
reasonable and lawful justification, from threatening to justice, a lawyer must not appear before a tribunal
initiate or proceed with penal or regulatory proceedings in member or judge if that member or judge has or may seem
an effort to gain a benefit for the client. This includes to have an outside relationship with the lawyer, the
threatening or advising a client to threaten the laying of lawyer’s firm, or the client that gives rise or appears to give
criminal charges against someone or offering to seek or rise to pressure, influence, or inducement affecting the
procure the withdrawal of criminal charges. As explained impartiality of the member or judge. This outside
in Chapter 7 (Duty to the client) of these Study Materials, relationship may be a personal or business one. The
unless the application is reasonably and lawfully justified, lawyer must declare any outside relationship that exists
it is an abuse of process of the court or regulatory authority and advise the member or judge that the lawyer is
to threaten to make or advance a charge or complaint in precluded by the Rules from appearing before the member
order to secure the satisfaction of a private grievance. or judge. If the member or judge is not recused from
presiding over the matter or denies an adjournment to
3.2 Shall not mislead the tribunal — permit a new licensee to act for the client, the lawyer
rr. 5.1-2(e), (h), (i), and (l)
would be in breach of the Rules and may be forced to
For the tribunal to effectively review and decide upon a withdraw.
matter, the tribunal must have access to all information
Lawyers must also ensure that no one else directly or
that is relevant to the matter before it. A lawyer must not
indirectly endeavours to influence the tribunal, its
knowingly attempt to deceive the tribunal or influence the
officials, or its decisions. The only appropriate way to
course of justice by, for example,
influence the tribunal’s decision is through open
ƒ misstating facts or law; persuasion as an advocate. This is done by making
ƒ presenting or relying upon false evidence or a submissions based on legal principles and evidence before
deceptive affidavit that contains statements that are the tribunal in the presence of, or on notice to, all parties
untrue, misleading, or incomplete; or to the proceeding or as required by the rules of procedure.
ƒ suppressing what ought to be disclosed.
3.4 Shall not engage in dishonest conduct —
The lawyer must not make suggestions to a witness r. 5.1-1 and commentary, and rr. 5.1-
recklessly or knowing them to be false. The lawyer is also 2(b), (e), (f), (g), (j), and (k)
prohibited from knowingly misrepresenting the client’s
A lawyer must not engage in or permit the client to engage
position in a litigation matter or the issues to be
in dishonest conduct in relation to the tribunal and its
determined in the litigation. Though it is not the lawyer’s
officers. A lawyer must not misstate the contents of a
responsibility to assist the opposing side when before a
document, the testimony of a witness, an argument, or a
tribunal, the lawyer must not deliberately avoid informing
statutory provision. The lawyer must ensure that no
the tribunal of any binding authority that may be directly
evidence is suppressed and no witness is improperly
relevant to the matter. Lawyers must disclose all that is
dissuaded from testifying. A lawyer is prohibited from
required by law and the applicable rules of procedure.
deliberately allowing a witness or a party to be presented
As discussed above, in criminal matters where the client to a tribunal in a false or misleading way, including
has admitted to the lawyer the necessary elements of an allowing a witness to impersonate another individual. A
offence with which the client is charged and the lawyer is lawyer is not permitted to knowingly assert as true a fact
convinced that the admission is true and voluntary, the that cannot be reasonably supported by the evidence or a
lawyer must not present a defence that would contradict fact for which a tribunal or court cannot take notice. A
the admission since to do so would mislead the court. lawyer must not assist anyone to engage in dishonest,
fraudulent, criminal, or illegal conduct and must
3.3 Shall not improperly influence the withdraw from representing a client who insists that the
tribunal — rr. 5.1-2(c)–(d)
lawyer engage in this type of conduct.
For the justice system to function effectively, members of
tribunals and courts must be fair, objective, independent,
and neutral. They must base their decisions only on the
evidence and not on their own personal feelings or biases.

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CHAPTER 12 PROFESSIONAL RESPONSIBILITY

3.5 Shall not mistreat witnesses — rr. 5.1- ƒ Considering whether to retain independent legal
2(j), (m), (o), 5.3-1, 7.2-6, and 7.2-8– counsel to provide advice about the lawyers’
7.2-8.2 and commentary obligations. If independent legal counsel is retained,
the lawyer and independent legal counsel should
As advocates, subject to the rules with respect to consider
communication with a represented party, lawyers may
— whether independent legal counsel should be
contact all possible witnesses for both sides, but lawyers informed of the identity of the client and
must disclose their interest in the matter and be fair and instructed not to disclose the identity of the
honest when dealing with them. Lawyers must not lawyer to law enforcement authorities or to the
improperly dissuade a witness from giving evidence or prosecution; and
advise a witness to be absent. Further, lawyers must not — whether independent legal counsel should,
needlessly abuse, harass, inconvenience, or intimidate either directly or anonymously, taking into
witnesses. account the procedures appropriate in the
circumstances,
3.6 Shall not appear under the influence of y disclose or deliver the evidence to law
alcohol or a drug — r. 5.1-2(p) enforcement authorities or the
A lawyer is prohibited from appearing before a court or prosecution; or
tribunal while under the influence of alcohol or drugs. A y both disclose and deliver the evidence to
lawyer who does so may fail to provide competent, quality law enforcement authorities and to the
service to the client and demonstrates a lack of prosecution.
professionalism. ƒ Delivering the evidence to law enforcement
authorities or to the prosecution, either directly or
3.7 Shall not counsel or participate in the anonymously, taking into account the procedures
concealment, destruction, or alteration appropriate in the circumstances.
of incriminating physical evidence — ƒ Delivering the evidence to the tribunal in the
r. 5.1-2A and commentary relevant proceeding, which may also include seeking
A lawyer must not counsel or participate in the the direction of the tribunal to facilitate access by
the prosecution or defence for testing or
concealment, destruction, or alteration of incriminating
examination.
physical evidence or otherwise act so as to obstruct or
attempt to obstruct the course of justice. In this rule, ƒ Disclosing the existence of the evidence to the
prosecution and, if necessary, preparing to argue
“physical evidence” does not depend upon admissibility
before a tribunal about the appropriate uses,
before a tribunal or upon the existence of criminal disposition, or admissibility of it.
charges. It includes documents, electronic information,
A lawyer should balance the duty of loyalty and
objects, or substances relevant to a crime, criminal
confidentiality owed to the client with the duties owed to
investigation, or criminal prosecution. It does not include
the administration of justice. When a lawyer discloses or
documents or communications that are solicitor-client
delivers incriminating physical evidence to law
privileged or that the lawyer reasonably believes are
enforcement authorities or the prosecution, the lawyer has
otherwise available to the authorities.
a duty to protect client confidentiality, including the
This rule does not apply where a lawyer is in possession of client’s identity, and to preserve solicitor-client privilege.
evidence tending to establish the innocence of a client,
A lawyer has no obligation to assist the authorities in
such as evidence relevant to an alibi. However, a lawyer
gathering physical evidence of a crime but cannot act or
must exercise prudent judgment in determining whether
advise anyone to hinder an investigation or a prosecution.
such evidence is in fact exculpatory and therefore falls
A lawyer’s advice to a client that the client has the right to
outside the application of this rule. For example, if the
refuse to divulge the location of physical evidence does not
evidence is both incriminating and exculpatory,
constitute hindering an investigation. A lawyer who
improperly dealing with it may result in a breach of the
becomes aware of the existence of incriminating physical
rule and also expose a lawyer to criminal charges.
evidence or declines to take possession of it must not
A lawyer is never required to take or keep possession of counsel or participate in its concealment, destruction, or
incriminating physical evidence or to disclose its alteration.
existence. Possession of illegal things could constitute an
A lawyer may determine that non-destructive testing,
offence. A lawyer in possession of incriminating physical
examination, or copying of documentary or electronic
evidence should carefully consider the lawyer’s options,
information is needed. A lawyer should ensure that there
which include, as soon as reasonably possible, the
is no concealment, destruction, or alteration of the
following:

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ADVOCACY CHAPTER 12

evidence and should exercise caution in this area. For For information on interviewing a represented
example, opening or copying an electronic document may corporation or organization, see Chapter 11 of these Study
alter it. A lawyer who has decided to copy, test, or examine Materials.
evidence before delivery or disclosure should do so
without delay. 4.3 Communicating with witnesses giving
evidence — r. 5.4-2
4. Dealing with witnesses To ensure that a lawyer does not influence a witness who
Witness testimony is an important part of the tribunal is giving testimony, the lawyer’s ability to speak with a
process. Witnesses do not “belong” to either party in a witness during a proceeding is limited. The lawyer must
proceeding since the evidence that a witness provides to comply with the Rules unless the judge or tribunal
the tribunal may support either side of a case. Though the member allows or instructs the lawyer to do otherwise. To
lawyer is free to communicate with any potential witness comply, a lawyer must consider
after disclosing the lawyer’s interest (subject to the rules ƒ whether the witness is the lawyer’s own witness or is
with respect to communication with represented parties), being called by other parties; and
a witness does not have to respond to the lawyer. The ƒ whether the witness is sympathetic to the lawyer’s
lawyer’s duties when dealing with witnesses, outlined cause.
below, apply to all witnesses.
4.3.1 Communicating with a lawyer’s own
4.1 Interviewing witnesses — r. 5.3-1 witnesses during testimony
As advocate, the lawyer should interview and prepare all Once a lawyer’s own witness begins to testify, the lawyer
possible witnesses. A lawyer may help prepare a witness must limit communications with that witness throughout
by discussing with the witness and between all stages of the witness’s testimony. Subject
ƒ suitable attire for the hearing or court appearance; to the direction of the tribunal, the lawyer must comply
with the following provisions with respect to the lawyer’s
ƒ the need to be respectful and courteous in behaviour
own witness:
and tone;
ƒ appropriate ways to address the judge or tribunal ƒ During examination-in-chief, the lawyer may
member, other licensees, and other parties; discuss with the witness any matter not covered in
examinations up to that point (r. 5.4-2(a)).
ƒ the need to listen carefully to each question posed
and to answer truthfully; and ƒ Between completion of examination-in-chief and
commencement of cross-examination of the
ƒ how to give evidence in a clear, straightforward, and witness, the lawyer ought not to discuss with the
truthful manner. witness the evidence given in chief or relating to any
As previously discussed, subject to the rules with respect matter introduced or touched on during the
to communication with represented parties, a lawyer may examination-in-chief (r. 5.4-2(a.2)).
seek information from any potential witness, whether ƒ During cross-examination by an opposing legal
under subpoena or not, but the lawyer shall disclose the practitioner (or party), the lawyer ought not to have
any conversation with the witness about the
lawyer’s interest and take care not to subvert or suppress
witness’s evidence or any issue in the proceeding
any evidence or cause the witness to stay out of the way. (r. 5.4-2(b)).
4.2 Interviewing represented persons — ƒ Between completion of cross-examination of the
rr. 5.3-1 and 7.2-6–7.2-6A and witness and commencement of re-examination by
commentary the lawyer, the lawyer ought not to have any
discussion with the witness about evidence that will
As outlined in Chapter 11 (Duty to others) of these Study be dealt with on re-examination (r. 5.4-2(c.1)).
Materials, lawyers are not permitted to approach,
communicate, or deal with a person who is represented by 4.3.2 Communicating with witnesses
a legal practitioner in respect of the matter, except called by other parties
through or with the consent of that person’s legal Rule 7.2-6 prohibits communications with any witness
practitioner. This prohibition applies to any person who is a represented party in the proceeding absent
related to the matter with whom the lawyer wishes to consent from that party’s legal practitioner. Subject to that
communicate and includes non-parties, such as potential prohibition and the direction of the tribunal, restrictions
witnesses. The rule applies where the lawyer knows or on communicating with non-party witnesses called by
should know that the person is represented by a licensee other parties are less stringent and depend on whether the
or lawyer from a Canadian jurisdiction outside of Ontario. witnesses are sympathetic to the lawyer’s cause.

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(a) Witnesses sympathetic to the lawyer’s requirement, it may help the lawyer avoid any confusion
cause or any actual or alleged impropriety when communicating
In cases where witnesses called by other parties are with witnesses who are giving testimony. The lawyer
sympathetic to the lawyer’s cause, the lawyer should not should consider implementing this policy when in doubt
communicate or should limit communications with such or as a best practice.
witnesses. The lawyer must observe the following
5. Relations with jurors
provisions when dealing with witnesses sympathetic to the
lawyer’s cause but who are called by other parties: The role of the jury is an important one in the
administration of justice. To ensure that any jury trial
ƒ During cross-examination of the witness by the
proceeds free of actual or suggested influence and that
lawyer, the lawyer may only discuss with the witness
any matter that has not been covered in the justice is served, jurors and prospective jurors are
examination up to that point (r. 5.4-2(c.3)). forbidden to discuss with anyone the case on which they
ƒ During re-examination of the witness by an are or may be sitting upon. As officers of the court, lawyers
opposing legal practitioner (or party), the lawyer must not allow or encourage a juror to violate this
ought not to discuss the evidence to be given by the obligation and must inform the court and the opposing
witness during re-examination (r. 5.4-2(c.4)). side if they discover improper conduct by a member of the
jury.
(b) Witnesses unsympathetic to the
lawyer’s cause, witnesses adverse in 5.1 Communications with jurors — rr. 5.5-1
interest and 5.5-4 and commentaries
There are few restrictions on communicating with A lawyer connected to a case for which a jury will or has
witnesses who are unsympathetic to the lawyer’s cause if been called is prohibited from communicating with or
those witnesses are called by other parties. When the causing another to communicate with anyone the lawyer
witnesses are called by other parties, a lawyer may knows to be a potential or actual jury member, both before
communicate with witnesses who are unsympathetic to and during the trial. Though a lawyer may investigate a
the lawyer’s cause or adverse in interest as set out in the prospective or actual juror to ascertain any basis for
Rules: challenge or removal, there must be no direct or indirect
ƒ During examination-in-chief by another legal contact between the lawyer and the juror or any of the
practitioner (or party) of a witness who is juror’s family members.
unsympathetic to the lawyer’s cause, the lawyer may
discuss the witness’s evidence with the witness 5.2 Disclosure of information — rr. 5.5-2–
(r. 5.4-2(a.1)). 5.5-3
ƒ During the lawyer’s cross-examination of a witness Unless the judge and opposing counsel have been
who is unsympathetic to the lawyer’s cause, the previously informed, a lawyer acting as an advocate shall
lawyer may discuss the witness’s evidence with the
disclose to them that the lawyer is aware that a juror or
witness (r. 5.4-2(c.2)).
prospective juror
ƒ During re-examination by an opposing legal
practitioner (or party) of a witness who is adverse in ƒ has or may have a direct or indirect interest in the
interest, the lawyer may discuss the evidence with outcome of the case;
the witness (r. 5.4-2(c.4)). ƒ is acquainted with or connected in any way to the
presiding judge, any counsel, or any litigant; or
4.3.3 Practical considerations
ƒ is acquainted with or connected in any way to any
Rule 5.4-2 applies to examinations out of court (e.g., person who has appeared or is expected to appear as
cross-examinations on an affidavit), with some necessary a witness in the matter.
modifications. A lawyer must promptly notify the court of any
If the lawyer is unsure of whether the lawyer may speak information that the lawyer reasonably believes discloses
with a witness under this rule, the lawyer should obtain improper conduct by a juror or a member of a jury panel.
the consent of the opposing legal practitioner or leave of
6. Lawyer as witness — s. 5.2
the tribunal to engage in the conversation with the witness
before actually doing so. The lawyer’s role as advocate is to further the client’s
interests within the limits of the law. The role of the
A lawyer may choose to avoid communicating with
witness is to give evidence of facts that may or may not
witnesses altogether, even in situations where the Rules
assist in furthering the case of any of the parties to a
permit limited discussion. Though this is not a
proceeding. Because these roles are different, the Rules

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ADVOCACY CHAPTER 12

prohibit, except in very limited circumstances, a lawyer process, the lawyer must take steps to withdraw in
from acting as advocate (i.e., represent a client) in a matter compliance with the rules of the tribunal and s. 3.7 of the
and being a witness (i.e., give evidence) in that same Rules.
matter.
8. Agreement on guilty plea — rr. 5.1-7–
Unless permitted to do so by law, the tribunal, the rules of 5.1-8
court, or the rules of procedure of the tribunal, or unless
As an advocate for an accused or a potential accused in a
the matter is purely formal or uncontroverted, a lawyer
criminal matter, a lawyer may discuss with the prosecutor
who appears as advocate shall not
how to resolve the case unless the client has instructed
ƒ submit the lawyer’s own affidavit to the tribunal; or otherwise. A lawyer is permitted to enter into an
ƒ testify before the tribunal. agreement about a guilty plea if, following investigation,
the lawyer meets the requirements in r. 5.1-8. Before
When acting as advocate, the lawyer should not appear as
entering into any agreement with the prosecutor
an unsworn witness by expressing personal opinions or
regarding the guilty plea, the lawyer for the accused or
stating as fact anything that is subject to legal proof, cross-
potential accused must first
examination, or challenge. If the lawyer becomes a
necessary witness (e.g., by order or subpoena) and must ƒ advise the client about the prospects of acquittal or
testify in the matter, the lawyer should testify and entrust finding of guilt (i.e., explain the client’s chances of
the conduct of the case to another lawyer. Lawyers being found guilty if the case were to go to trial);
appearing as witnesses should be prepared to be cross- ƒ explain to the client how a guilty plea may affect the
examined and have their testimony challenged as might client’s life (e.g., what effect the conviction following
the guilty plea will have on the client’s employment
occur with any other witness; lawyers should not expect to
prospects or ability to travel outside the country);
receive special treatment because of their professional and
status as lawyers. A lawyer who has appeared as a witness
ƒ inform the client that the court is not bound by any
in a proceeding is further prohibited from acting as
agreement on a guilty plea (i.e., the judge may
advocate in the appeal of any decision from that ignore the agreement, refuse to accept the guilty
proceeding unless the matter about which the lawyer plea, and order that the client proceed to trial or the
testified is purely formal or uncontroverted. judge may impose a sentence on the client that is
different than the terms of the plea agreement).
7. Discovery obligations — r. 5.1-3.1
The lawyer must review all of this with the client to ensure
Where the rules of the tribunal require parties to produce the client understands completely what could happen if
documents or to provide information through the client pleads guilty to the offence.
examinations for discovery, lawyers acting as advocates
If the client wishes to enter into an agreement regarding a
must
guilty plea after the lawyer has properly informed the
ƒ explain to clients the necessity of making full client as required by the Rules, the lawyer must ensure
disclosure (i.e., produce all documents relating to that the client voluntarily
any matter at issue) and the duty to answer any
proper question to the best of their knowledge, ƒ admits the factual and mental elements of the
information, and belief relating to any issue in the offence charged (i.e., admits that all the facts that
action or made discoverable by the rules of court or make up the offence exist, are true, or happened
the tribunal; and admits that the client intended to and did
ƒ assist clients in fulfilling their obligation to make commit the crime); and
full disclosure; and ƒ instructs the lawyer to enter into an agreement as to
ƒ not make frivolous requests for the production of a guilty plea.
documents or frivolous demands for information at Before entering into a guilty plea, the lawyer should obtain
the examination for discovery. the client’s admission and instructions regarding the
Lawyers must not use the process of disclosure to wear guilty plea agreement in writing.
down the other side. A lawyer must take care when dealing
The lawyer cannot assist the client with a guilty plea
with a client who instructs the lawyer to injure the other
regarding a charge if the client denies involvement but
side by taking steps to make the process longer and more
hopes to obtain a lesser sentence by entering into a guilty
complicated than necessary since such instructions
plea. This rule applies even where the client believes that
conflict with the lawyer’s duty as advocate. If the client
a conviction is likely. In a case like this, the best the lawyer
insists that the lawyer follow those instructions after the
can do is to review the prosecutor’s case with the client,
lawyer has explained the purpose of the disclosure
explore why the client feels that conviction is inevitable,

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CHAPTER 12 PROFESSIONAL RESPONSIBILITY

and tell the client that the lawyer cannot assist the client
in entering into an agreement as to a guilty plea.

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 Chapter 13
Practice management

Operating a successful law and legal services practice ƒ a civil society organization (CSO); and
requires more than the skill and ability to provide advice, ƒ a professional corporation under the Business
opinions, and services regarding the law. Running an Corporations Act.
effective practice means managing the responsibilities The Law Society of Ontario recognizes three practice
associated with that practice to properly serve the client. arrangements that include professionals who are neither
In addition to managing the client relationship, which is lawyers nor paralegals: multi-discipline practices or
discussed in Chapter 9 (Managing the client relationship) multi-discipline partnerships, CSOs, and affiliations. The
of these Study Materials, lawyers must address how they specific Law Society requirements for these business
will entities are contained in By-Law 7, made under the Act.
ƒ make legal services available to the public;
2. Making legal services available — s. 4.1
ƒ manage the files, their time, and the technology of
the practice; Lawyers who offer legal services to the public must do so
ƒ manage financial responsibilities; in a way that is efficient and convenient. In offering legal
services, lawyers must not use means that
ƒ manage supervisory responsibilities;
ƒ manage the administrative and business aspects of ƒ are false or misleading;
the practice; ƒ amount to coercion, duress, or harassment;
ƒ manage mental health and wellness; and ƒ take advantage of a person who is vulnerable or who
ƒ manage their responsibilities under the Personal has suffered a traumatic experience and has not yet
Information Protection and Electronic Documents had a chance to recover;
Act (PIPEDA). ƒ are intended to influence a person who has retained
another licensee for a particular matter to change
Each of these aspects is discussed below. Though the
the licensee for that matter unless the change is
primary benefit is to ensure that clients are adequately initiated by the client or the existing licensee; or
served, proper practice management also allows lawyers
ƒ otherwise bring the profession or the administration
to manage or reduce the risk of a malpractice claim. of justice into disrepute.
Because r. 3.1-1(i) of the Rules of Professional Conduct
(Rules) defines a “competent lawyer” as one who, among Lawyers must ensure that they do not misrepresent the
other things, manages the lawyer’s practice effectively, nature of their practice to prospective clients and the
proper practice management is also a professional public at large. In presenting and promoting a law and
responsibility. legal services practice, the lawyer must comply with the
Rules relating to the marketing of legal services and the
1. Permitted business structures and advertising of fees for those services. The Rules are in
practice arrangements — By-Law 7 place to ensure that lawyers do not mislead clients or the
Because some of the practice management obligations public, while still permitting lawyers to differentiate
contained in the Rules relate to the firm structure or themselves and their services from those of other lawyers
arrangement, lawyers should be aware of the business and law firms.
structures or practice arrangements available to lawyers 2.1 Marketing legal services —
under the Law Society Act (Act) and its by-laws. Lawyers rr. 4.2-0–4.2-1.1 and commentaries
are permitted to practise law and provide legal services
through For purposes of the Rules, “marketing” includes

ƒ a sole practice or sole proprietorship; ƒ firm names (including trade names);

ƒ a general partnership under the Partnerships Act; ƒ letterhead;

ƒ a limited liability partnership (LLP) under the ƒ business cards;

Partnerships Act; ƒ logos; and
ƒ an interprovincial law firm that carries on the ƒ advertisements and other similar communications
practice of law in more than one province or in various media.
territory of Canada;

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CHAPTER 13 PROFESSIONAL RESPONSIBILITY

Lawyers may market their professional services only if the ƒ do not genuinely reflect the performance of the
marketing meets all the conditions set out in the Rules. lawyer and the quality of the services provided by
the lawyer but appear to do so;
All marketing must be ƒ are not the result of a reasonable evaluative process;
ƒ demonstrably true, accurate, and verifiable; ƒ are conferred in part as a result of the payment of a
ƒ neither misleading, confusing, deceptive, nor likely fee or other consideration rather than as a result of
to mislead, confuse, or deceive; and a legitimate evaluation of the performance and
quality of the lawyer; or
ƒ in the best interests of the public and consistent
with a high standard of professionalism. ƒ the lawyer could not have demonstrated, at the time
of reference, were compliant with this rule.
In addition, a lawyer must specifically identify in all
marketing materials that the lawyer is licensed as a lawyer. The following are examples of marketing practices that
It is important that the public is aware that both lawyers may contravene the Rules:
and paralegals are licensed by the Law Society and of ƒ suggesting qualitative superiority to other licensees;
whether it is a lawyer or paralegal who is offering to ƒ suggesting or implying the lawyer is aggressive;
provide services.
ƒ disparaging or demeaning other persons, groups,
These requirements apply to all marketing organizations, or institutions;
communications regardless of the form of marketing and ƒ raising expectations;
include advertisements about the size, location, and ƒ using testimonials or endorsements that contain
nature of the lawyer’s practice; the performance of the emotional appeals; and
lawyer; the quality of the services provided; and any
ƒ marketing past results (e.g., the amount of money
awards, rankings, and endorsements from third parties. obtained for a client and the lawyer’s degree of
success in past cases) without including a statement
2.1.1 Marketing prohibitions — rr. 4.2-1,
clarifying that such results are not necessarily
4.2-1.2 and commentaries
indicative of future results and that amounts
Lawyers are prohibited from marketing second-opinion recovered will vary according to the facts of each
services regardless of the intent of such advertising. individual case.
Although the provision of second opinions is valuable to To ensure that a law firm’s descriptive or trade name is not
clients, second-opinion marketing is commonly used to misleading, it should not refer to a specific geographical
obtain a retainer rather than provide a second opinion. area nor should it imply a connection with any other
Accordingly, advertising second-opinion services, organization, entity, or public agency. A law firm name
regardless of the intent, is a breach of the Rules. should not include phrases such as “Jay Doe and
Associates,” “Jay Doe and Company,” or “Jay Doe and
Additional examples of marketing practices that
Partners” unless there are actually two or more associates
contravene the Rules include
or partners with Jay Doe at that law firm. A firm that is a
ƒ engaging in “bait and switch” marketing (i.e., professional corporation or a limited liability partnership
marketing by which clients are attracted by offers of must also comply with Ontario’s Business Corporations
services, prices, or terms different from those
Act and the Partnerships Act, respectively.
commonly provided to clients who respond to the
marketing); 2.1.2 Unprofessional marketing practices
ƒ failing to clearly and prominently disclose a practice — rr. 4.1-2 and 4.2-1 and
that the lawyer has of referring clients for a fee or commentary
other consideration to other licensees;
The Rules require that marketing be consistent with a high
ƒ marketing services that the lawyer is not currently standard of professionalism. Unprofessional marketing is
able to perform to the standard of a competent
not in the best interests of the public and has a negative
lawyer; and
impact on the reputation of licensees, the legal
ƒ referring to awards, rankings, and third-party
professions, and the administration of justice. Examples
endorsements that are not bona fide or are likely to
be misleading, confusing, or deceptive. of marketing practices that may be inconsistent with a
high degree of professionalism include using images,
The terms “awards” and “rankings” are intended to be language, or statements that
interpreted broadly and to include superlative titles such
as “best,” “super,” “#1,” and similar indications. Awards, ƒ are violent, racist, or sexually offensive;
rankings, and third party endorsements that contravene ƒ take advantage of a vulnerable person or group; or
this rule include those that

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ƒ refer negatively to other licensees, the legal ƒ in relation to a proceeding commenced pursuant to
professions, or the administration of justice. the Class Proceedings Act, 1992; or
The Rules also stress the special role that lawyers have to ƒ where either the client or any person or entity
recognize and protect the dignity of individuals and the responsible for the payment of the client’s legal fees
diversity of the community in Ontario. As a result, lawyers in the matter that is the subject of the agreement is
an organization that meets the requirements of
must ensure that their marketing practices conform to the Contingency Fee Agreements, O. Reg. 563/20,
requirements of human rights laws in force in Ontario. made under the Solicitors Act.
Lawyers may also wish to consider employing the
However, unless the lawyer markets legal services on a
following marketing practices, which are guided by
contingency fee basis exclusively in relation to
principles of equality, diversity, and inclusion:
proceedings commenced pursuant to the Class
ƒ identifying the various languages in which services Proceedings Act, 1992 or to organizational clients meeting
can be delivered and preparing marketing materials the requirements of Contingency Fee Agreements, the
in those languages;
lawyer must still comply with the requirement to publish
ƒ inviting prospective clients to identify forms of a general maximum contingency fee percentage in respect
accommodation they require in order to access of all other clients. For more information on the
services;
contingency fee requirements, see Chapter 8 (Fees and
ƒ identifying a lawyer’s pronouns and languages disbursements) of these Study Materials.
spoken on the lawyer’s website profile;
ƒ having on the lawyer’s website and in the lawyer’s 2.2 Advertising of fees — r. 4.2-2
physical place of business signs that identify
A lawyer or law firm may advertise (in any medium) the
inclusive initiatives that are respected at the place of
work, such as being a scent-free workplace or a fees charged for legal services if
welcoming space for 2SLGBTQ+ (two-spirit, ƒ the advertising is reasonably precise as to the
lesbian, gay, bisexual, transgender, queer and services offered for each fee quoted;
questioning, and other identities) individuals;
ƒ the advertising states whether other amounts will be
ƒ publicly sponsoring community initiatives that charged in addition to the fee, such as
advance equality, diversity, and inclusion; and disbursements and taxes; and
ƒ advertising services that are responsive to the needs ƒ the lawyer strictly adheres to the advertised fee in
of underserved communities and posting such every applicable case.
advertisements in the media and at locations that
are accessed by those underserved communities. 2.3 Advertising residential real estate
services — r. 4.2-2.1 and commentary
2.1.3 Contingency fee marketing
requirements — rr. 3.6-2.2 and 4.2- The Rules permit lawyers to advertise their fees for
2.2 and commentary residential real estate transactions, including acting on a
sale, purchase, or refinancing, if the following
Where a lawyer markets legal services on the basis that
requirements are met:
clients may be charged a contingency fee, in whole or in
part, the lawyer must publish the general maximum ƒ The advertised price is inclusive of all fees for legal
contingency fee percentage. services, disbursements, and third-party charges
except for Harmonized Sales Tax (HST) and the
Where the lawyer has a website, this information must be following permitted disbursements:
published on that website and should be easily accessible. — land transfer tax;
Where the lawyer does not have a website, this
— government document registration fees;
information must be provided to the client when the client
first contacts the lawyer. — fees charged by the government including
municipalities or other similar authorities (i.e.,
Lawyers may enter into contingency fee agreements where for due diligence investigations);
the contingency fee rate is higher than their published — Teranet fees;
maximum rate only if the lawyer discloses to the client that
— condominium status certificate costs;
the percentage fee exceeds the lawyer’s disclosed
maximum contingency fee rate and publishes the higher — payment for letters from creditors’ lawyers
regarding similar name executions; and
rate as the lawyer’s maximum rate.
— title insurance premiums.
The above contingency fee marketing requirements do not
ƒ The advertisement clearly states that the advertised
apply price excludes HST and that the above permitted
disbursements are not included in the price (e.g.,

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CHAPTER 13 PROFESSIONAL RESPONSIBILITY

the permitted disbursements should not be set out of By-Law 15, made under the Act, states that a lawyer who
in small print or in separate documents or is not a certified specialist is not permitted to use any
webpages). designation from which a person might reasonably
ƒ The lawyer strictly adheres to the advertised price conclude that the lawyer is a certified specialist.
for every residential real estate transaction.
ƒ In a purchase transaction, the advertised price 3. File management
includes acting on both the purchase and on one Effective file management refers to the general
mortgage.
management of a client matter and provides the basis for
ƒ In a sale transaction, the advertised price includes timely and effective client service. Being able to easily
the price of acting on the discharge of a first store, organize, and retrieve information and documents
mortgage.
regarding a client’s matter means less time looking for
The all-inclusive advertised price must also include documents and more time serving the client. Files may be
overhead costs, courier costs, bank fees, postage costs, in paper or electronic form or both. A proper file
photocopy costs, third-party conveyancer’s title and other management system will assist the lawyer in complying
search or closing fees, and all other costs and with requirements under the Rules, such as preserving
disbursements. client confidentiality and avoiding conflicts of interest.
These requirements apply to all forms of price advertising Lawyers should have and use systems to
including in traditional media (i.e., television, radio, ƒ record information and store copies of documents
newspapers, books, and magazines), the Internet, or information required to identify and verify the
standardized price lists, and the lawyer’s own website identity of clients and third parties, per By-Law 7.1,
(regardless of whether the website lists prices for services made under the Act;
or provides pricing in response to a request made through ƒ store and retrieve key information regarding all firm
the website). This rule does not apply where the lawyer, in clients and other parties related to the client’s
matter;
response to a website inquiry, provides a specific fee
quotation based on an actual assessment of the work and ƒ open and maintain active client files for individual
disbursements required for the transaction, as long as the client matters;
lawyer fully discloses the anticipated types of ƒ check for conflicts;
disbursements and other charges the client would be ƒ check for limitation periods;
required to pay in addition to the quoted fee. ƒ close, retain, and dispose of completed files;
Lawyers who agree to provide services pursuant to an ƒ review and update systems to ensure they meet
advertised price are required to perform those services to changing standards, techniques, or practices;
the standard of a competent lawyer. Clients are entitled to ƒ identify clients’ property and place it in a secure
the same quality of legal services whether the services are location for safekeeping; and
provided pursuant to an advertised price or otherwise. For ƒ comply with the Law Society’s record-keeping and
information on the standard of competence required of bookkeeping requirements.
lawyers under the Rules see Chapter 4 (Competence) of
Lawyers may also wish to use systems or software to
these Study Materials.
ƒ manage their own documents (electronic and
2.4 Advertising nature of practice — r. 3.1-2 hardcopy);
and commentary, r. 4.3-1 and
ƒ ensure that undertakings have been satisfied; and
commentary; By-Law 15
ƒ manage obligations to any third-party service
A lawyer’s marketing materials may include information providers or experts.
to assist a potential client to choose a lawyer who has the
appropriate skills and knowledge for the client’s particular 3.1 Conflict checking — rr. 3.4-1–3.4-3 and
legal matter. A lawyer may advertise preferred areas of commentaries
practice, that the lawyer’s practice is restricted to a certain The Rules require that lawyers not act or not continue to
area of law, or a description of the lawyer’s or firm’s act for a client where there is a conflict of interest, except
proficiency or experience in an area of law. In all cases, the as permitted under s. 3.4. Lawyers must examine whether
representations must be accurate and not misleading. a potential conflict exists at the very first contact with the
prospective client, at the outset of the retainer, and
Rule 4.3-1 prohibits lawyers from advertising that the
throughout the retainer. The lawyer should maintain a
lawyer is a specialist in a particular field unless the lawyer
record of each conflict search that includes the date the
has been so certified by the Law Society. Further, s. 20(2)

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PRACTICE MANAGEMENT CHAPTER 13

search was completed, the names searched, and the name ƒ all names of current, previous, and prospective
of the person who conducted and reviewed the search. clients (including birth or given names, former
names, nicknames, and other names used);
To determine whether a conflict exists, lawyers should use ƒ all adverse parties;
a system that checks for conflicts
ƒ all persons connected to the matter;
ƒ when the prospective client first contacts the firm
ƒ officers and directors of any corporate client and
seeking legal services, usually by phone or email
prospective corporate client;
(i.e., before the prospective client provides the
lawyer with confidential information); ƒ owners of any corporate client and prospective
corporate client;
ƒ after the first interview with the client or
prospective client or when additional information ƒ parent corporations or subsidiaries of any corporate
about the matter is available; client and prospective corporate client;
ƒ after being retained by the client, at any time a new ƒ partners or affiliates of any client and prospective
party or person is added to the matter; and client;
ƒ when a lawyer changes employment or the lawyer’s ƒ co-plaintiffs or co-defendants;
firm changes composition or ownership. ƒ common-law spouses or close relatives of any client
At the initial meeting with the client or prospective client, and prospective client, and any persons associated
a lawyer needs to determine who the client or prospective with any client or prospective client; and
client is, persons (individuals or organizations) who may ƒ members of the law firm and any organizations in
be involved in or associated with the client or prospective which the members have a major interest.
client in the matter, and any other parties (including When a prospective client first contacts the firm, the
organizations or other entities) in the matter. Information lawyer or a staff member should check the prospective
regarding current and former clients should be client’s name and any other adverse party names against
documented in the firm’s records and conflicts-checking the names in the firm’s conflicts-checking system. If there
system. Conflicts-checking systems require the lawyer to is a match, the lawyer must review and determine if there
record and check “conflict names.” Conflict names are the is a conflict of interest. If there is a conflict, the lawyer
names of individuals or entities that have some must determine the appropriate way to manage the
relationship to the client, prospective client, or matter that conflict. If a lawyer cannot act for a prospective client
may give rise to a conflict of interest. Conflict names because of a conflict, the lawyer must advise the
include, for example, the names of prospective client that there is a conflict without divulging
ƒ adverse parties in the matter; any confidential information and should confirm the non-
engagement in writing.
ƒ persons related to or associated with adverse parties
in the matter; and 3.2 Opening files, file organization, and
ƒ persons related to or associated with the client or storage
prospective client in the matter.
Lawyers should follow appropriate file opening
Variations of conflict names (such as birth or given names, procedures to organize file contents and to properly store
nicknames, maiden names, and company names) should files. Lawyers should use a system, electronic or otherwise,
be checked; possible alternative spelling of conflict names that allows them to
should also be checked.
ƒ identify, organize, store, and track information,
Conflicts-checking systems may be manual or documents, evidence, and property relating to each
computerized. Manual conflicts-checking systems make file or client matter; and
use of index cards: one for each client identifying the client ƒ confirm in writing the substance of communications
and listing all conflict names. Additional cards for each with clients, prospective clients, and other
conflict name are cross-referenced to the client. The cards individuals associated with the matter (e.g., a
are filed alphabetically in an index card box and are meeting, conversation, or telephone
communication, including messages left and
reviewed whenever a prospective client contacts the office. received) by way of a dated file notation or memo to
Computerized systems can store and manage large the file.
amounts of information about individuals and their
Generally, there is no need to open a new file when a
relationships to each other and allow for fast and easy
person contacts the lawyer or firm to make general
inputting and retrieval of this information.
inquiries and does not disclose any confidential
Whether manual or computerized, every conflicts- information. However, if a prospective client reveals
checking system should contain a record of confidential information during the initial

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communication with the firm, the lawyer should open a File contents should be complete and organized in a
new file and should not wait until the lawyer meets with manner that allows the lawyer and others to efficiently
the prospective client at the initial interview. A memo to review the file and continue working on the matter in the
the file should be made outlining the confidential lawyer’s absence without delay. To enable the lawyer to
information received from the prospective client during retrieve file contents or information quickly, file contents
the first communication. A lawyer should also open a file should be organized according to class or type of
when retained to provide services for any new matter for document. These may include
new, current, and former clients. This includes a new ƒ communications (e.g., correspondence, memos to
matter that is related to an existing client matter. file, conversation or meeting notes, and telephone
Maintaining a notation of confidential information notes);
received from a client or a prospective client during any ƒ substantive memoranda and investigations;
communication is important regardless of whether the ƒ original documents;
person has retained the lawyer or firm. Apart from ƒ retainer agreement or engagement letter;
ensuring that the lawyer has confirmation of what was
ƒ firm accounts and billing information;
discussed during that initial conversation, the memo will
assist the lawyer in managing potential conflicts of ƒ legal research;
interest that may arise as a result of the lawyer’s duty to ƒ undertakings or trust conditions to be satisfied; and
protect confidential information. ƒ other documents or items, as appropriate to the file.
At the initial contact, the lawyer should advise the Active client files should be stored separately from closed
prospective client of the consequences of missing a files. They should be contained in a secure or locked
limitation period. If the limitation period is about to expire cabinet or location, and filed in an orderly fashion for easy
and the individual will not be retaining the lawyer, the retrieval (i.e., by file number or alphabetically, as per the
lawyer should refer the individual to the applicable statute file naming system). The lawyer may consider using an
and indicate the need for the individual to take urgent indexing system to associate client matters with the file
action. This should be confirmed by way of a letter to the numbering system. All documents relating to a client
individual and a memo to file. To ensure that the matter should be kept in the file.
individual receives the letter, the lawyer should provide it
to the individual at the end of the consultation or send it 3.3 Closing, retaining, and disposing of file
contents
via courier or registered mail. A copy of this letter should
also be included in the file. A lawyer should only close a file after all matters related to
the file have been completed or the lawyer has withdrawn
Ideally, a dated notation should be made and stored in the
or been discharged. When dealing with client files, lawyers
file of every meeting, conversation, or telephone
should always review the file before closing it to ensure
communication, including messages left and received. It
that there are no outstanding matters and use a file closing
should confirm the substance of the communication and
procedure or checklist that requires the lawyer or firm to
should record the information provided to the client,
prospective client, or third party by the lawyer, as well as ƒ assign a new closed file code to the file;
the information received by the lawyer from the client, ƒ store closed files separately from active files;
prospective client, or others regarding the client matter. ƒ protect closed files from damage or destruction;
Confirmation may be made by way of a memo to the file
ƒ organize closed files for easy retrieval;
or, in some cases, by letter to the client, prospective client,
or other party. A copy of the confirming letter should be ƒ store electronic files in a format that can be
kept in the file. retrieved later;
ƒ preserve client confidentiality;
Lawyers may use a file opening checklist to ensure that all
required information is gathered each time they meet with ƒ distribute or dispose of file contents properly prior
to closing;
a prospective client for the first time or with an existing
client or former client for a new matter. A separate file ƒ assign a retention period; and
should be opened for each individual client matter. ƒ destroy closed files only when appropriate.
Lawyers should assign a distinct file name and number to Prior to closing the file, the lawyer should remove
each file. The file name should include the client name and unnecessary documents from the file. Documents
the reference or matter number. belonging to the client must be returned to the client.
These include the client’s original documents, any

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opposing party documents, and experts’ reports. The 3.4 Documents to be retained by the lawyer
lawyer should also forward any court or legal documents Documents that belong to the lawyer should be retained
(e.g., pleadings, affidavits, and endorsements or court by the lawyer in the closed client file. The documents
orders) that were not provided to the client during the created by the lawyer during the retainer for the lawyer’s
course of the retainer. benefit and protection and at the lawyer’s expense belong
The lawyer should have the client sign an to the lawyer. Such documents include
acknowledgment indicating receipt of the client’s ƒ copies of all original correspondence copied at the
documents, which should be added to the closed file. lawyer’s own expense;
Lawyers should consider if each closed client file should ƒ copies of all original documents belonging to the
be retained indefinitely or for a fixed period of time, or if client that were copied at the lawyer’s expense;
it should be destroyed. If the file is to be destroyed, the ƒ working notes, summaries of evidence, and
lawyer should determine submissions to the court;

ƒ the date the file is to be destroyed, considering any ƒ inter-office memoranda; and
legal or regulatory requirements; and ƒ notes (e.g., memos to file and pre-trial notes) and
ƒ the manner of file destruction to preserve other documents prepared for the lawyer’s own
confidentiality (e.g., shredding documents may be benefit and protection and at the lawyer’s own
an appropriate method for destroying file contents, expense.
while simply recycling them is not). As well, the lawyer’s accounting records related to the
It is the lawyer’s responsibility to decide whether file client matter belong to the lawyer, not the client. These
contents should be destroyed or retained. If the lawyer include time entries, dockets, client bills, trust statements,
chooses to store file contents, the lawyer must also decide and similar accounting records and financial information
for how long. The lawyer should review and consider each that relate to the client matter. They are part of the office
file individually before making this decision, taking into accounting system, must be maintained by the lawyer in
consideration accordance with By-Law 9, made under the Act, and
should not be kept in the client file for the particular
ƒ any legal requirement to preserve the document;
matter.
ƒ the lawyer’s potential liability for errors and
omissions; Where the client requests that the lawyer retain
documents relating to the client’s matter (e.g., wills,
ƒ any applicable limitation periods, including any
limitation periods relating to the lawyer’s potential powers of attorney, title deeds, and securities), the lawyer
liability for professional negligence, errors and should consider whether it would be appropriate to retain
omissions, professional misconduct, or conduct those documents in the specific circumstances and
unbecoming a lawyer; whether the lawyer can observe all relevant rules of law
ƒ the likelihood of the lawyer requiring the contents relating to the preservation of client property.
in the future;
Lawyers should consider keeping copies of documents
ƒ whether other sources are available to obtain that will be returned to the client in case the client sues the
information contained in the file such as
lawyer for negligence, makes a complaint to the Law
information in tribunal records or government
registry offices; Society alleging misconduct, or disagrees with the lawyer’s
statement of account. Lawyers may wish to keep copies of
ƒ the provisions of the retainer agreement or
engagement letter; ƒ all correspondence, including engagement or non-
ƒ whether the client has its own records retention engagement letters;
policy and, if so, the length of time that a document ƒ written retainer agreements;
is preserved under the policy; and ƒ client’s written authorizations and directions;
ƒ the client’s wishes. ƒ documents containing a client’s instructions or
The client’s original documents, as opposed to the lawyer’s changes to instructions;
copy of client documents, must not be destroyed. These ƒ draft agreements or other documents to support
documents belong to the client and must be returned to changed instructions;
the client before the other documents in the file are ƒ documents that confirm the client’s refusal to follow
destroyed. the lawyer’s instructions;
ƒ offers to settle and the client’s acceptance or
rejection of such offers; and

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CHAPTER 13 PROFESSIONAL RESPONSIBILITY

ƒ documents or records that cannot easily be obtained development activities to ensure they maintain their
from another source. competence and comply with their continuing
Lawyers who choose to make and keep copies of the above professional development (CPD) requirements.
for their own files must do so at their own expense.
To accomplish more during the time they devote to their
Additional information can be found in the File practice, lawyers should use strategies to
Management Practice Management Guideline on the Law ƒ control interruptions by limiting “open door”
Society’s website. policies and by accepting phone calls or meetings at
specific times each day;
4. Time management
ƒ focus on one task at a time to avoid distractions;
Timeliness is an important part of client service and,
ƒ delegate work to supervised support staff to free
therefore, of managing a law practice. It is also required the lawyer’s time for tasks and activities that may
by the Rules. Lawyers who manage their time effectively only be addressed by the lawyer;
are more productive and more likely to meet the client’s ƒ cultivate time management skills by overcoming
needs and service expectations in a cost-effective manner. procrastination and limiting or refusing
The basic features of an effective time management unreasonable requests from others;
system are time planning, reminders, and time docketing. ƒ maintain time records for individual client matters
and also to evaluate where there are inefficiencies in
4.1 Time planning
the use of their time; and
Lawyers should organize the time they spend on their ƒ adopt procedures to reduce inefficiency including
practice to ensure they are using their time wisely and proper meeting management through the use of an
completing tasks in an efficient, timely, and cost-effective agenda, telephone conference, or virtual meeting
manner. To assist in planning the lawyer’s time, the lawyer platform; tracking of completed work to avoid
should allocate blocks of time to specific tasks for each duplication; proper file organization and storage to
allow efficient access; prompt filing of documents to
day, week, month, and year. prevent loss; and standardization of routine tasks.
The lawyer should schedule time each day to
4.2 Reminder systems
ƒ review the tasks that need to be completed that day;
Lawyers should have systems in place to remind them of
ƒ return phone calls and emails from clients and other what needs to be accomplished and when. An effective
parties;
system will assist the lawyer to meet important deadlines,
ƒ review and respond to correspondence; such as limitation dates, filing periods, and tribunal
ƒ ensure time docket entries are recorded or assigned appearances. Missing a limitation date will compromise a
to client files; and client’s case, thereby increasing the likelihood of a
ƒ address urgent or arising matters. professional negligence complaint, and missing a Law
Society filing date could result in a suspension of the
Depending on the lawyer’s practice, the lawyer should
lawyer’s licence to practise law and provide legal services.
allot time each week or each month to
Lawyers should use to-do lists to set priorities, and desk
ƒ review the tasks that need to be completed that diaries or calendars (either paper or electronic) to plan
week or that month; time and track appointments, appearances, and crucial
ƒ meet with clients; dates.
ƒ work uninterrupted on client files (e.g., drafting, A centralized reminder or “tickler system” should be used
research, and document review);
to
ƒ schedule external attendances (e.g., client meetings,
examinations, and court and tribunal appearances); ƒ flag limitation periods or deadlines;
ƒ meet with firm staff and colleagues; ƒ follow up in order to respond to reminder notices on
time; and
ƒ attend to the administration or business aspects of
the law practice; ƒ remind lawyers of the upcoming steps to take in
ongoing client files.
ƒ attend to accounting, bookkeeping, and filing
requirements; and Reminder systems may be manual or computerized. A
ƒ conduct periodic reviews of open client files (usually reminder system must draw the lawyer’s attention to any
monthly). deadlines or due dates and keep these dates on the system
until the tasks associated with each date have been
Lawyers should also schedule time monthly or yearly to
completed. When using a computerized system, the
take part in continuing education and professional

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information should be backed up daily to ensure and billing software implemented by the lawyer or law
information is not damaged or lost. This will also help the firm. Additional information and strategies for managing
lawyer avoid a negligence claim from a missed deadline time effectively can be found in the Time Management
resulting from a computer problem. Practice Management Guideline on the Law Society’s
website.
Though the responsibility for noting and following up on
key dates may be assigned to a trusted employee, it is 5. Use of technology — r. 3.1-2,
ultimately the lawyer’s responsibility to ensure that commentaries [4A]–[4B]
deadlines and limitation periods are met. Lawyers should
Lawyers have a duty of technological competence as
conduct a periodic review of all open client files to confirm
discussed in Chapter 4 (Competence) of these Study
that work on all files is being completed in a timely and
Materials. The required level of technological competence
effective manner. Lawyers should also consider
will depend on whether the use or understanding of
conducting a physical inventory of open files at a
technology is necessary and whether the relevant
frequency appropriate to the nature and size of the
technology is reasonably available. Accordingly, lawyers
lawyer’s practice. The lawyer’s reminder system should
should consider and evaluate which systems will best suit
also include review and inventory dates.
the lawyer’s or firm’s needs and the requirements of
4.3 Time docketing clients and client matters.

A “time docket” is a record of the time the lawyer spends Many aspects of practice management can be efficiently
on a client matter. A docket entry should record the client accomplished by using information-technology software
name, file or matter number, date, time, time spent, and a and systems. For example, lawyers may use technology to
description of the work performed. Lawyers should offer and advertise legal services, to serve the client, and
consider maintaining time dockets for all files, either to manage their files and time.
through paper or electronic means, to ensure that fee When using software, lawyers should also obtain the
billings are accurate or to assist in justifying fees if the appropriate permission or licences and avoid violating the
client later questions the amount charged, whether or not software’s terms of use and copyright law. Lawyers should
the lawyer charges an hourly rate. For example, time also have knowledge of relevant legal or regulatory
dockets may assist the lawyer in determining whether the provisions governing or relating to information
block fee being charged for a particular task, service, or technologies and ensure they can comply with their duty
matter is appropriate. to protect confidential information as discussed in
Lawyers should also track non-billable hours to monitor Chapter 5 (Confidentiality) of these Study Materials.
their own productivity. Dockets should be detailed,
5.1 To make available, market, and provide
updated as soon as any activity on the client file is
legal services
completed, and recorded or assigned to client files daily.
This will allow the lawyer to bill clients on a regular basis. Lawyers may use electronic media to offer or advertise
services. Such media include websites, blogs, electronic
When implementing a manual or computerized time newsletters, videos, social media, email, online chat
docketing system, lawyers should select one that will allow rooms, discussion groups, and bulletin boards. When
them to using electronic means to market or make legal services
ƒ explain services to be performed; available, the lawyer must still comply with the Rules.
ƒ accumulate the total time spent on the file by each Lawyers should also recall the following:
lawyer; ƒ To prevent confusion, lawyers should properly
ƒ record billable and non-billable time; identify themselves or the law firm by providing the
firm name and address, the jurisdiction where the
ƒ produce interim and final statements of account for
lawyer is licensed (i.e., Ontario), and the name and
services rendered to clients; and
email address of at least one lawyer responsible for
ƒ produce time data for monthly, quarterly, and electronic communication.
annual reports to assist in management of the firm.
ƒ Lawyers should not use and may be prohibited by
A manual time docketing system involves the use of paper Canada’s anti-spam legislation from using methods
time sheets. The lawyer records the time spent on each file, where the advertisement is directly and
and a firm employee manually inputs the time records into indiscriminately sent to a number of newsgroups or
email addresses (i.e., spamming).
the appropriate client file or firm database. A
computerized system allows the lawyer to docket ƒ To avoid misleading anyone, lawyers should not
post advertisements to newsgroups, electronic mail
electronically and is fully integrated with the accounting
lists (“list servs”), or bulletin boards where the

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posting topic does not match what is being 5.3 Special considerations
advertised in the posting.
As noted above, a lawyer should understand and be able
When providing legal advice or services through electronic to use technology relevant to the nature and area of the
media, the lawyer lawyer’s practice and responsibilities. If the lawyer uses
ƒ should clearly indicate the capacity in which the third-party providers to set up, maintain, or repair any
lawyer is acting, especially if the lawyer is not problems with technology tools that store or use client
providing legal advice, opinions, or services; information, the lawyer must ensure that client
ƒ must avoid conflicts of interest by ascertaining the information remains confidential. Lawyers should
identity of the parties with whom the lawyer is consider requiring third-party providers to sign a
dealing; confidentiality agreement.
ƒ must maintain confidentiality by using appropriate
Technology used to provide and market legal services
means to minimize the risk of disclosure, discovery,
or interception of such communications (e.g., by must be used in a manner that meets a lawyer’s
using and advising clients to use encryption professional obligations under the Rules. This includes
software, and by implementing internal controls to ensuring that email, websites, social networking sites, and
offer reasonable protections); other electronic tools used to communicate with clients
ƒ must avoid creating inadvertent lawyer-client comply with the confidentiality requirements and practice
relationships by engaging in social media management obligations discussed in these Study
conversations with prospective clients regarding a Materials. Accordingly, lawyers who use technology in
specific matter or legal need; and their practice should understand the benefits and risks
ƒ must not engage in the unauthorized practice of law associated with such technology, be aware of cybersecurity
in jurisdictions where the lawyer is not licensed. risks, take appropriate security measures, make adequate
5.2 To assist in practice management
plans for backup and disaster recovery, and select tools
that they will be able to access in the future.
A lawyer should consider using
Lawyers should implement security measures to prevent
ƒ legal research tools such as Internet-based
programs (e.g., CanLII or Quicklaw) or other legal- ƒ unauthorized copying of electronic data;
research databases; ƒ accessing of electronic files by hackers;
ƒ practice-area-specific software such as Teraview ƒ interruptions of virtual meetings or conferences by
software for the electronic registration of intruders;
documents in real estate matters or CaseLines for
electronic submissions of documents in court ƒ destruction of electronic information and hardware
proceedings; by computer viruses or power failures;

ƒ document management systems or services such as ƒ theft of electronic information stored in stolen
case management or litigation support software, or hardware; and
templates to create legal forms and documents; ƒ exposure of confidential information during the
ƒ analysis support software such as spreadsheets or search and seizure of client information by law
calculators; enforcement or border agents or officers.

ƒ document-drafting or productivity software to Security measures may include the use of passwords to
ensure that writing and drafting is accomplished in limit access to electronic data, the installation of firewalls
a timely and cost-effective manner; or virus scanning software, and the installation of
ƒ communication tools such as voicemail, email, fax, encryption software. For example, lawyers should
secure “dropboxes,” and videoconferencing services; implement internal security controls to restrict the
ƒ database management systems for housing client downloading, viewing, or circulating of discriminatory
information or checking for conflicts of interest; material received from third parties and provide for the
ƒ calendaring and scheduling systems to meet immediate deletion of unsolicited material that is contrary
current and future deadlines; and to the Ontario Human Rights Code.
ƒ time docketing and accounting systems to Despite efforts to prevent it, a lawyer may be required to
accurately bill clients and meet record-keeping deal with the loss or destruction of electronic information
requirements. after it has occurred. Lawyers should have backup and
More information on selecting and using technology tools disaster recovery plans in place. Such plans should require
to support the practice of law or provision of legal services the lawyer or law firm to
can be found in the Technology Resource Centre on the ƒ perform regular backup of data;
Law Society’s website.

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ƒ store backup data in a secure off-site location; ƒ must meet financial obligations incurred on the
ƒ perform routine checks to ensure data can be client’s behalf;
restored; and ƒ should fulfill financial responsibilities related to
ƒ have insurance in place to cover the cost to recover operating a law practice; and
lost electronic information or hardware. ƒ must satisfy financial reporting and compliance
requirements.
Lawyers should also ensure that the technological tools
and systems they implement will continue to meet their Proper financial management is required by the Rules.
needs in the future. Lawyers should regularly review the Failing to meet financial obligations may be reason for
software and hardware they have used to ensure that the disciplinary action by the Law Society. These Study
information stored can still be accessed and viewed and Materials only address lawyers’ professional
that the technology has not become obsolete. This is responsibility obligations under the Rules and Law Society
especially important when retaining records or client by-laws, which are apart from any other legal obligations.
information in electronic format only, either housed in a If a lawyer is unsure of which legal obligations apply, the
rarely used software program, in the cloud, or on an lawyer should seek legal advice.
electronic storage device (e.g., CD, DVD, and USB keys).
6.1 On behalf of the client — r. 7.1-2 and
Lawyers should ensure that advances in technology do not commentary
result in an inability to access the data at a later date.
As previously discussed in these Study Materials, lawyers
As explained in previous chapters, lawyers have an must promptly meet all financial obligations incurred in
obligation to ensure that they protect client the course of practice on behalf of clients unless, before
confidentiality. Lawyers travelling with electronic devices incurring such an obligation, the lawyer clearly indicates
(e.g., smartphones, tablets, and laptops) that contain in writing to the person to whom the obligation is owed
client information may be subject to device searches at that it is not the lawyer’s personal obligation. These
international borders. As a result, lawyers should consider financial obligations include expenses such as the
developing policies for cross-border travel that protect payment of fees to file a claim on the client’s behalf, to
against inadvertent disclosure of the confidential obtain a transcript or other document needed for the
information and follow appropriate measures to protect client’s matter, and to secure the services of a third party.
client confidentiality whenever they are travelling with an
electronic device containing confidential information. Lawyers should obtain the client’s consent before
retaining a third party (such as an expert, a consultant, or
As a final consideration when using technology, lawyers some other professional) on behalf of the client. The terms
must ensure that all activities or tasks are still being of that retainer should be confirmed in writing and should
completed without error or omission. For example, a outline the services to be provided by the third party, the
lawyer who sends a document to another party via email fees for the services, and the person responsible for
must ensure that it is free of errors and does not contain payment. Payment may be made by either the client
any notes or metadata that might reveal strategy, tactics, directly or the lawyer on behalf of the client. Where the
or confidential client information. Similarly, a lawyer who lawyer has indicated in writing that the lawyer is not
sends client correspondence via email should discuss with responsible for the payment of the third party’s fees and
the client in advance the risks associated with the client has not taken steps to pay the third party, the
corresponding electronically and must ensure that email lawyer should assist in making satisfactory arrangements
is sent only to the proper recipient. Lawyers should for payment if it is reasonably possible to do so. This may
consider encrypting all electronic communications or take include negotiating a reduction in the third party’s fees or
other precautions to ensure confidentiality is preserved. arranging a payment plan for the client.
Additional information on the use of technology in a legal
practice can be found in the Technology Practice The lawyer should include in the estimate of fees and
Management Guideline and the Technology Resource disbursements to the client the cost of payments to third
Centre on the Law Society’s website. parties. To ensure that the client has funds available to pay
for the services of the third party, the lawyer may consider
6. Managing financial responsibilities obtaining and holding in trust the estimated fees to pay for
Effective management of a law practice includes third-party services before hiring that third party. Lawyers
management of the lawyer’s financial responsibilities. To have specific duties with respect to trust funds. See
meet those financial obligations, the lawyer must know Chapters 7 (Duty to the client) and 14 (Accounting, bank
what they are and when they are due. Lawyers accounts, and bookkeeping) of these Study Materials for
more information.

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CHAPTER 13 PROFESSIONAL RESPONSIBILITY

If something unexpected arises that changes the cost of a general account). Lawyers must maintain accurate
third-party service, the lawyer should immediately advise accounting records to properly track client funds as
the client and revise the estimate for legal services and required by By-Law 9, but the records themselves are not
disbursements. The lawyer should explain why the costs filed with the annual report. Lawyers must also report to
have changed and why it may be reasonable for the client the Canada Revenue Agency on income tax and HST, if
to incur additional charges, if applicable. This should be applicable. For information on accounting and record-
confirmed for the client in writing. If costs have increased, keeping requirements under the Rules and by-laws, see
the lawyer should ask for further additional funds to cover Chapter 14 of these Study Materials. Additional
the increased cost of the third-party services. Where the information on managing financial responsibilities in a
lawyer plans to bill the client for the third party’s costs legal practice can be found in the Financial Management
after they have been paid by the lawyer, the lawyer should Practice Management Guideline on the Law Society’s
confirm this in a letter to the client. website.
If the client discharges the lawyer or the lawyer otherwise 7. Managing supervisory responsibilities —
withdraws before a third party has been paid for services ss. 1.1 and 6.1–6.2; By-Law 4;
provided to the client, the lawyer who originally hired the By-Law 7.1, Part I
third party should advise the third party about the change Under the Rules, lawyers are responsible for the
and provide the name and contact information of the supervision of any support staff they employ. Proper use
client’s new licensee. of support staff allows lawyers to make efficient use of the
6.2 To operate a law practice time they have for the practise of law or provision of legal
services and may result in savings to clients. Rule 6.1-1
It is prudent that lawyers meet their own financial requires a lawyer to assume complete responsibility for
responsibilities as they relate to running a law practice. the lawyer’s practice, including the direct supervision of
Such financial obligations include those associated with tasks and work products completed by non-lawyer
ƒ professional regulation fees; employees. Proper hiring, training, and supervision
ƒ professional liability insurance premiums and practices are essential. Because the definition of “lawyer”
levies; contained in the Rules includes a candidate enrolled in the
Law Society’s Licensing Process for lawyers (“licensing
ƒ business insurance;
candidate”), a lawyer’s supervision of a licensing
ƒ employee salaries; candidate is not captured by this rule.
ƒ remittance of the HST;
For the supervision of licensing candidates, s. 34 of By-
ƒ renting or leasing office space and equipment (e.g.,
Law 4 provides that a student (i.e., a person who has
photocopier);
entered into service under articles of clerkship or the law
ƒ office utilities (e.g., heat, electricity, and telephone); practice program) may provide legal services under
ƒ postage and courier costs; articles of clerkship or while completing a work placement
ƒ business supplies; in the law practice program so long as a lawyer licensed by
the Law Society directly supervises the student when the
ƒ any software or electronic systems being used for
the practice; and student is engaged in such activities. As outlined
separately in r. 6.2-2, the duty of a lawyer who has been
ƒ bank fees.
approved as an articling principal is to give the student
A successful law practice is a well-managed one. Lawyers meaningful training and exposure to and involvement in
must adopt accepted accounting and bookkeeping systems work that will provide the student with knowledge and
and must attend to billing, collecting, and paying ongoing experience of the practical aspects of the law, together
firm expenses. with an appreciation of the traditions and ethics of the
profession. Because licensing candidates are also subject
6.3 Reporting and compliance requirements
— By-Laws 8 and 9 to the Rules, and since principals are responsible for the
actions of students acting under their direction, principals
A final part of meeting a lawyer’s financial responsibilities should ensure that licensing candidates are familiar with
is to fulfill the reporting and compliance requirements the responsibilities contained within the Rules.
related to those financial obligations. As outlined in By-
Law 8, made under the Act, each year lawyers must file Lawyers may offer other experiential learning
with the Law Society an annual report that includes opportunities to law students and paralegal students in an
information on their books and records for client funds effort to enhance competency and ethical behaviour
(i.e., the trust account) and their own funds (i.e., the among new licensees (e.g., through clinics and

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externships). A lawyer’s delegation and supervision consistency in a lawyer’s practice, and assist to protect the
responsibilities in the context of such experiential learning lawyer from potential claims.
opportunities are outlined under Part I of By-Law 7.1.
7.3 Delegation and supervision
7.1 Hiring support staff
Lawyers must ensure that employees only complete tasks
Lawyers should hire trustworthy individuals for their for which they have been properly trained and have the
practice. Lawyers should obtain as much professional required competence. The lawyer is responsible for all
information about a potential employee as possible, and work delegated to employees, including students, and
when interviewing a potential employee, the lawyer must directly and adequately supervise them. The extent
should ask about the candidate’s past performance and of that supervision will depend on the type of matter,
experience. If the position involves handling money, the regardless of how standardized or repetitive the task, and
lawyer may ask for the candidate’s consent to check the the experience of the employee, both generally and with
candidate’s criminal record and credit reports. Lawyers the matter in question. Extra care may be needed if there
must comply with privacy legislation, the Rules, and is something different or unusual in the matter.
human rights laws in force in Ontario in their hiring
To prevent the unauthorized practice of law or provision
processes. Lawyers should confirm the information
of legal services, lawyers must not allow non-licensee
contained in a candidate’s résumé, consult references, and
employees to perform any of the duties that only a lawyer
verify previous employment experience before offering
may perform. This rule applies at the lawyer’s practice and
employment to a candidate.
at any satellite or virtual office of the practice. Part I of By-
7.2 Training Law 7.1 outlines the specific obligations placed on lawyers
who delegate work to non-licensee employees, while the
Proper training ensures that employees have the skill,
commentary to r. 6.1-1 provides examples of appropriate
knowledge, and ability needed to fulfill job-related duties.
delegation of tasks as they relate to real estate matters,
The lawyer must properly train non-licensee employees
including electronic registration and title insurance;
before delegating tasks to them. “Non-licensee” is a
corporate and commercial matters; and wills, trusts, and
defined term under s. 1(1) of By-Law 7.1. In addition to
estates.
training on the types of matters the lawyer handles, the
lawyer should ensure non-licensees are familiar with the With the lawyer’s prior express instruction and
Rules and by-laws and educate non-licensee employees, authorization, a non-licensee employee can
such as support staff, on ƒ take instructions from the client;
ƒ the types of tasks that can and cannot be delegated; ƒ give or accept an undertaking on the lawyer’s
ƒ the need to act with courtesy and professionalism; behalf;
ƒ the definition of discrimination and harassment, ƒ act before an adjudicative body on the lawyer’s
and the prohibition against conduct that amounts to behalf in respect of a scheduling or other related
discrimination or harassment; routine administrative matter; and
ƒ the duty to maintain client confidentiality and ƒ with the client’s prior consent, conduct routine
methods used to protect confidential information negotiations with third parties in relation to the
when working in the office or remotely (e.g., client’s matter, where the negotiation results are
avoiding gossip and protecting passwords for online approved by the lawyer before any action is taken
communication platforms); following from the negotiations.
ƒ cybersecurity best practices and procedures to Lawyers must not allow a non-licensee employee to
better understand, identify, and avoid cybercrime ƒ accept a client on the lawyer’s behalf;
dangers;
ƒ provide the client legal advice;
ƒ the definition of a conflict of interest, the duty to
avoid conflicts of interest, and how to use a ƒ act finally in respect of the client’s affairs;
conflicts-checking system; ƒ perform any of the duties that only lawyers may do;
ƒ proper handling of client property, including ƒ perform any duties that lawyers themselves are not
money; and permitted to do;
ƒ proper record keeping. ƒ conduct negotiations with third parties that are not
Lawyers should consider documenting their office of a routine nature;
procedures and policies in an office manual. An office ƒ sign correspondence unless it is of a routine
manual may be used to train new employees and support administrative nature;
staff, be used by them as a reference, help ensure

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ƒ forward to the client any document that has not A lawyer must not allow a non-lawyer employee to give
been reviewed by the lawyer, unless it is a routine legal opinions regarding title insurance. Where there is
document; or direct supervision by the lawyer, the lawyer may permit a
ƒ be held out as a lawyer. non-lawyer employee to advise the client about any
Lawyers should ensure that non-licensee employees insurance (including title insurance), present to the client
clearly identify themselves as such when communicating insurance options or information about premiums, and
with clients, prospective clients, the tribunal, other recommend one insurance product over another.
licensees, or the public. This includes both written and
7.5 Supervision of paralegals
oral communications.
Due to the definition of “non-licensee” contained in Part I
7.4 Supervision in real estate matters — of By-Law 7.1, the supervisory responsibilities of a lawyer
rr. 1.1, 6.1-1 and commentary, and
over non-licensee employees also applies to any paralegals
rr. 6.1-5–6.1-6.2; By-Law 7.1
the lawyer may employ. Despite the paralegal’s own
The Rules also provide guidance on the supervision of obligations and responsibilities under the Paralegal Rules
non-lawyer employees in real estate matters for activities of Conduct and the paralegal’s licence to provide
that relate to the electronic registration of title documents independent legal services within the permitted scope of
and title insurance. practice, a paralegal employed by a lawyer must expressly
agree to the lawyer’s effective control over the paralegal’s
Each person in a law office who accesses the system for the
provision of services to the lawyer.
electronic registration of title documents (e-reg™) must
have a personalized security package. A personalized 7.6 Multi-discipline practices — s. 7.8.1
security package is the diskette, key, RSA token, token
number, and/or personalized e-reg pass phrase to access Where a lawyer has chosen to associate or partner with
the e-reg system. one or more non-legal professionals to serve clients
through a multi-discipline practice, that lawyer must
A lawyer who acts in real estate transactions using the e- ensure that non-licensee partners and associates comply
reg system assumes complete responsibility for with the Rules and all ethical principles that govern a
documents the lawyer signs electronically and is lawyer in the discharge of the lawyer’s professional
responsible for the content of any document electronically obligations. These professional obligations include the
signed and registered by a non-lawyer employee upon the duty to uphold the integrity of the legal professions and,
lawyer’s approval. as previously discussed in these Study Materials, the
In addition, lawyers obligation to avoid conflicts of interest.

ƒ shall not permit a non-lawyer employee or others to 7.7 Supervision of affiliated entities —
use the lawyer’s personalized security package; By-Law 7.1, s. 3(2)
ƒ shall ensure that a non-lawyer employee does not A lawyer is not permitted to delegate to staff of an
permit others to use the employee’s personalized affiliated entity any tasks in connection with the practice
security package;
of law or provision of legal services to the client without
ƒ shall not permit a non-lawyer to sign for the informed consent of the client. Where the client does
completeness any document that requires provide consent, it must be confirmed in writing, provided
compliance with law statements; and
that, where more than one person consents, each signs the
ƒ shall not assign to a non-lawyer employee the same or a separate document recording the consent, or
ultimate responsibility for the review or signing of
orally, provided that each person consenting receives a
— a title search report; separate written communication recording their consent
— a letter of requisition; as soon as practicable.
— a title opinion; or
8. Managing administrative and business
— a reporting letter to the client. aspects of the practice
While lawyers are permitted to delegate certain Effective management of a law practice also includes
responsibilities to non-lawyer employees having a managing the administrative and business aspects of the
personalized security package, lawyers should ensure that practice. As mentioned previously in these Study
non-lawyer employees maintain and understand the Materials, a lawyer’s licence to practice law and provide
importance of maintaining the security of the personalized legal services may be suspended if the lawyer fails to meet
security package. the Law Society’s administrative requirements. Licensees
must

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ƒ file with the Law Society a notice of change for every grants another named lawyer the authority to act on the
change to the licensee’s legal and assumed names, lawyer’s behalf to
practice status, personal and business contact
information, and location and account number of ƒ exercise all powers in connection with the lawyer’s
any trust accounts, per By-Law 8; practice that the lawyer would be able to exercise,
and delegate any act the attorney may exercise to
ƒ notify the Law Society of changes in information to
some other person;
the licensee’s business structure or practice
arrangement, per By-Law 7; ƒ access the general and trust accounts to continue
with the practice;
ƒ pay an annual fee to the Law Society, due March 31
each year, per By-Law 5, made under the Act; ƒ arrange for and oversee the sale, transfer, or closure
of the practice if the lawyer is unable to return to the
ƒ submit an annual report to the Law Society, due
practice of law; and
March 31 each year, per By-Law 8;
ƒ manage any other aspects of the practice as deemed
ƒ maintain appropriate professional liability
necessary and appropriate.
insurance, per By-Law 6, made under the Act
(individual policy or exemption status will dictate Lawyers should also consider including in their own wills
due dates and fees); a clause that addresses how the practice should be sold,
ƒ complete the annual required CPD hours by transferred, or closed in the event of their death. Lawyers
December 31 each year and report these hours to should consider appointing another named lawyer as the
the Law Society by March 31 of the following year, estate trustee or a co-estate trustee to oversee the
per By-Law 6.1, made under the Act; conclusion of the law practice. Additional information on
ƒ meet other requirements related to business contingency planning can be found in the Contingency
structure, per By-Law 7, if applicable; and Planning for Lawyers guide on the Law Society’s website.
ƒ meet other requirements related to bankruptcy or
insolvency and offences, per By-Law 8, if applicable. 9. Managing mental health and wellness

Depending on the type of law practice, business structure, The Law Society is committed to supporting the mental
or other arrangements the lawyer has made, the lawyer health and wellness of Ontario’s licensees. Mental health
may have administrative requirements beyond those is defined by the World Health Organization as “a state of
imposed by the Law Society. Examples may include well-being in which an individual realizes his or her own
federal, provincial, or municipal business registrations or abilities, can cope with the normal stresses of life, can
renewals, or commercial or personal insurance filings. work productively and is able to make a contribution to his
Failure to comply with any administrative requirement or her community.”
may impact a lawyer’s practice. Lawyers may face certain challenges or stressors unique to
Proper practice management also involves protecting the their work that increase their vulnerability for mental
practice and safeguarding clients’ interests in all health, addiction, or wellness issues. These issues can
circumstances. Lawyers should create contingency plans result in significant impairment that may compromise a
that protect the clients’ interests by ensuring continuity lawyer’s professional conduct, a client’s interests, and the
during a business interruption or the lawyer’s absence. A administration of justice. Preserving, enhancing, and
lawyer should also have plans that allow for others to investing in personal health, particularly mental health, is
properly deal with the practice in the event the lawyer is critical to the success of any legal practice and helps to
unable to return to the practice of law. Plans should protect and serve the public interest.
address It is important that lawyers recognize indicia of mental
ƒ practice interruptions (e.g., natural disaster, illness and addiction, as well as sources of stress in their
pandemic, serious infectious disease outbreak, personal and professional lives, in order to identify and
severe seasonal infectious disease outbreak, office develop strategies to manage and promote personal health
disaster, technology failure, theft or vandalism, or
and well-being. Common sources of stress in the legal
law office search or seizure);
professions include the
ƒ planned absences (e.g., vacation, parental leave,
medical leave, or other leaves of absence); and ƒ burden of responsibility for other people and their
money, family, or freedom;
ƒ unplanned absences (e.g., personal difficulties,
sudden illness, incapacity, disability, or death). ƒ intense competition among licensees for clients or
legal work;
A lawyer should consider having a power of attorney for
ƒ complexity of the law; and
the practice during a planned or unplanned absence that
ƒ difficulty of achieving work-life balance.

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9.1 Strategies to improve mental health and Society and community resources to support well-being in
well-being the legal professions including topical articles, practice
Lawyers can achieve better mental health by building supports, government resources, and research and reports
resilience through the practice of wellness habits and related to mental health. Within the Well-being Resource
adopting strategies that help reduce, eliminate, or manage Centre, lawyers can also learn more about MAP and access
issues surrounding physical and mental health and free and paid CPD programs accredited by the Law Society
emotional wellness. that provide education and tools to support mental health
in the legal professions. Additional information and
Lifestyle habits aimed at enhancing mental, physical, and supports relating to mental health and wellness, can be
emotional health and well-being include found in the Personal Management Practice Management
ƒ eating a well-balanced diet; Guideline on the Law Society’s website.
ƒ engaging in physical activity; 9.3 Mental health and stigma
ƒ developing mindfulness practices;
The stigma associated with mental illness and addiction
ƒ finding social outlets and support networks; can have a devastating impact on members of the legal
ƒ getting sufficient sleep; and professions. For example, concerns that the lawyer’s legal
ƒ reducing the use or eliminating the abuse of alcohol career will be permanently and negatively affected by
or other drugs. disclosure of a mental health issue can affect the lawyer’s
Workplace strategies that may contribute positively to a willingness to openly discuss these issues and seek help,
lawyer’s well-being include treatment, and support. This in turn can impact the
lawyer’s ability to meet the lawyer’s professional
ƒ scheduling regular breaks and vacations; responsibilities, a situation that may result in a complaint
ƒ delegating tasks to assistants, students, or more to the Law Society or a claim in negligence.
junior lawyers, where appropriate;
Lawyers can help reduce the stigma associated with
ƒ developing a support group or forum for sharing
mental illness and addiction and reduce or eliminate
concerns; and
barriers to seeking help by
ƒ interacting and connecting with colleagues, friends,
and family. ƒ creating an organizational culture that encourages
and celebrates a balanced life and personal and
Lawyers may also wish to consider pursuing skills training professional fulfillment;
or coaching on practice management topics (e.g., time
ƒ maintaining a respectful and considerate workplace
management, effective delegation, managing client
where individuals are supported and offered
expectations, and goal setting) to assist in achieving mentorship;
balance in their personal and professional lives. The Law
ƒ educating leadership and staff about mental illness
Society’s Coach and Advisor Network is available to and addiction, including signs, symptoms, and ways
support lawyers seeking to develop a specific skill or learn they can help and support other colleagues,
about a practice-management best practice. associates, and staff; and

9.2 Mental health supports and resources ƒ encouraging open dialogue about mental health and
addiction issues.
Lawyers experiencing physical, mental health, addiction,
or wellness issues should seek assistance as early as 10. Privacy issues for a law practice
possible. There are a number of programs, supports, and 10.1 Introduction
resources available for lawyers dealing with mental health
issues including the Member Assistance Program (MAP). PIPEDA applies to organizations that collect, use, or
The MAP is a Law Society-funded program available to all disclose personal information in the course of commercial
lawyers, paralegals, law students, licensing process activities. Lawyers should be aware of their privacy
candidates, students at accredited paralegal education obligations under PIPEDA since their handling of
programs, judges, and other legal professionals in personal information may be subject to PIPEDA. For
Ontario, as well as their family members. The counselling example, consent requirements under PIPEDA will apply
services provided by the MAP are strictly confidential and when lawyers are collecting personal information from
are not disclosed to anyone, including the Law Society. prospective clients.

Lawyers may also consider visiting the Law Society’s Well­ PIPEDA requires organizations to comply with a series of
being Resource Centre on the Law Society’s website. The rules based on 10 principles (PIPEDA, Sched. 1):
Well-being Resource Centre brings together several Law 1. Accountability

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2. Identifying purposes internal policies and procedures for protecting privacy

3. Consent and addressing complaints and provide privacy training to
4. Limiting collection other lawyers and staff.

5. Limiting use, disclosure, and retention 10.2.2 Collection of personal information

6. Accuracy PIPEDA regulates the collection, use, and disclosure of
7. Safeguards “personal information” (s. 3). That term is defined broadly
8. Openness in s. 2(1) of PIPEDA as “information about an identifiable
individual,” recorded or not, and includes age,
9. Individual access
identification numbers, income, ethnic origin, employee
10. Challenging compliance
files, evaluations, credit and loan records, and medical
PIPEDA applies to organizations’ commercial activities in records.
all provinces, except organizations that collect, use, or
PIPEDA does not apply to “business contact information”
disclose personal information within provinces that have
provided it is collected, used, or disclosed “solely for the
substantially similar provincial laws (e.g., British
purpose of communicating or facilitating communication
Columbia and Quebec; and Ontario and New Brunswick
with the individual in relation to their employment,
in respect of personal health information collected, used,
business or profession.” “Business contact information” is
or disclosed by custodians). In such cases, the provincial
defined in PIPEDA as any information that is used for the
laws apply instead of PIPEDA, although PIPEDA
purpose of communicating or facilitating communication
continues to apply to interprovincial or international
with an individual in relation to their employment,
transfers of personal information.
business, or profession such as the individual’s name,
The Office of the Privacy Commissioner (Commissioner) position name or title, work address, work telephone
oversees PIPEDA and provides advice on how number, work fax number, or work electronic address.
organizations may comply with their privacy obligations
In order for a lawyer to begin a new client matter and open
under the statute. Also, individuals may complain to the
a file, the lawyer will need to collect personal information.
Commissioner about the personal information practices of
The client’s knowledge of and consent to the collection of
organizations, or the Commissioner may initiate a
personal information will be required.
complaint in respect of the matter (ss. 11(1)–(2)).
PIPEDA states that the consent of an individual is only
10.2 PIPEDA and a law practice
valid if it is reasonable to expect that an individual to
10.2.1 Application whom the organization’s activities are directed would
understand the nature, purpose, and consequences of the
Lawyers will collect personal information in running their collection, use, or disclosure of the personal information
practice. Like most organizations in Canada, law practices to which the individual is consenting (s. 6.1).
must comply with applicable privacy legislation. The
requirements of privacy laws such as PIPEDA must be Consent can be express or implied. Express consent is
considered by lawyers when collecting, using, or provided when the individual specifically agrees to
disclosing personal information. provide personal information. Implied consent is
generally provided through an act, such as an individual
Large law firms should consider appointing a privacy emailing a lawyer to retain the lawyer’s services. The
officer to be responsible for the law firm’s privacy purposes for which personal information is collected and
compliance, while sole practitioners or lawyers in smaller subsequently used should also be explained to the
firms should take on the responsibility of ensuring privacy individual.
compliance.
From time to time, lawyers may receive client referrals
Lawyers responsible for ensuring privacy compliance from other lawyers or clients. These referrals will often
must develop a privacy policy so that clients and include the personal information of the prospective client.
prospective clients understand how their personal Lawyers should ensure that the client has consented to the
information is handled (LAWPRO® has a generic policy for disclosure prior to storing the client’s information or
lawyers to use as a precedent). Privacy policies should be making contact.
made available on the website belonging to the lawyer or
firm. Additionally, lawyers or firms should communicate
to their clients or prospective clients how their personal
information will be handled (e.g., through a retainer
agreement). The responsible lawyers should also develop

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CHAPTER 13 PROFESSIONAL RESPONSIBILITY

10.2.3 Use and disclosure of personal or no cost to the individual (PIPEDA, Sched. 1, Principle 9,
information cl. 4.9.4).
Lawyers should advise their clients as to how their In certain situations, a law practice may not be able to
personal information will be used. For example, lawyers provide access to all the personal information it holds
should inform clients and prospective clients that their about an individual. Subsection 9(3) of PIPEDA provides
personal information will be used for the purposes of a an exhaustive list of the circumstances in which access to
conflicts check. In addition, lawyers should advise their personal information may be refused, such as where the
clients of any potential secondary uses of their personal information is protected by solicitor-client privilege.
information. For example, lawyers may wish to contact
their clients for the purposes of advising them of new 10.2.5 Retention and security of personal
services. Before using personal information for secondary information
purposes, lawyers should obtain the consent of their Lawyers should only retain personal information for as
clients. The type of consent required will depend on the long as is necessary to achieve the purpose(s) for which it
secondary purpose for which the personal information was collected and should limit their retention of personal
will be used and the type of personal information involved. information to only the minimum needed. In addition to
In cases involving more sensitive information, such as privacy laws, lawyers should also review Law Society rules
health information, express consent should be obtained. and by-laws and other applicable statutes when
Prior to disclosing any client’s personal information, a considering an appropriate period for retention of
lawyer should obtain consent from the client, subject to personal information. Following the expiration of any
certain exceptions (ss. 7(3) and (5)). Further, a lawyer retention period (and if applicable, any limitation period),
should obtain express consent for disclosures, since lawyers should destroy or de-identify the information.
implied consent may be deemed insufficient. Lawyers PIPEDA requires personal information to be safeguarded
should also always consider anonymizing or de­ at all times. Lawyers should ensure that reasonable
identifying personal information prior to disclosure. measures to prevent unauthorized access to their records
PIPEDA’s requirements concerning disclosure and are defined, documented, and put into place, taking into
consent are broadly consistent with a lawyer’s obligation account the nature of the records to be protected.
not to disclose a client’s personal information without Reasonable measures include the use of physical,
consent as set out in the Rules. organizational, and technological safeguards and the
Lawyers should note, however, that PIPEDA may permit incorporation of appropriate contractual provisions that
the disclosure of personal information without consent in ensure accountability, privacy, and security of the
situations such as a lawful authority requesting personal information. The more sensitive the information is, the
information for the purposes of administering any law of stronger the safeguards must be.
Canada or a province (s. 7(3)(c.1)(iii)). While PIPEDA may Lawyers may outsource the storage and processing of
permit such a disclosure, the Rules may prevent a lawyer personal information but will remain accountable for
from disclosing client information in that circumstance. ensuring its security under PIPEDA. PIPEDA also requires
Lawyers must assess each situation carefully and should organizations to be transparent about their personal
contact the Law Society’s Practice Management Helpline information handling practices. Accordingly,
with any questions or concerns regarding their obligations organizations should notify clients when using a service
under the Rules. provider located outside Canada and advise them that
their personal information may be subject to the laws of a
10.2.4 Access to personal information
foreign jurisdiction.
Law practices must, upon written request, inform
individuals of the existence, use, and disclosure of their 10.2.6 Destruction of personal information
personal information and must give them access to that Lawyers must ensure the secure disposal of personal
information. The Commissioner has found that law information. If paper documents are shredded, the lawyer
practices are required to respond to a request for access must ensure that personal information is not disclosed
within 30 days, even if they have no information that is and that confidentiality is maintained during both the
responsive to the request. A law practice may extend the destruction process and the disposal of the destroyed
30-day time limit in certain situations, including, for records.
example, where meeting the time limit would
unreasonably interfere with the activities of the practice. When destroying documents that contain personal
A law practice should process an access request at minimal information, lawyers should ensure that any information
that can reasonably be linked to an individual is properly

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destroyed. Lawyers should also ensure that metadata (i.e., Should a lawyer whose practice is subject to PIPEDA
data about data) associated with electronic documents is experience a data breach, the Commissioner recommends
destroyed. the lawyer immediately follow the following four steps:
Lawyers should keep a record of all files destroyed or (1) Contain the breach and conduct a preliminary
returned to the client. The record should contain the assessment.
client’s name, address, file number, a brief description of (2) Evaluate the risks associated with the breach,
the nature of the matter, the file closure date, the file including consideration of the personal information
destruction date or file delivery date, and the name of the involved, the cause and extent of the breach, how
many individuals are affected, and the likelihood
lawyer who authorized the destruction or delivery.
and type of harm that could occur.
10.3 Breaches of security safeguards (3) Consider whether and how to notify any or all of the
following: the affected individuals or clients, the
Lawyers whose practices are subject to PIPEDA are Commissioner, the police, insurers, the Law Society,
required to report, as soon as feasible, breaches of security or others.
safeguards involving personal information that pose a real
(4) Prevent future breaches by learning from the
risk of significant harm to individuals. The report must be incident and conducting any audit or other
made to the Commissioner, affected individuals, and investigation that may be needed to address any
certain third parties. Lawyers will also be required to systemic issues that resulted in the breach.
maintain a record of every breach of security safeguards
and provide the Commissioner with a copy of this record
upon request.

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 Chapter 14
Accounting, bank accounts, and bookkeeping

Knowledge of appropriate accounting principles and the types of accounting systems that are available for the
record-keeping requirements is essential for running a lawyer to use.
successful law practice. It is also a required part of
1.1 Types of accounting systems
competence, as outlined in the Rules of Professional
Conduct (Rules). A lawyer’s level of involvement in the Financial recording, reporting, and billing systems are
accounting aspects of the lawyer’s practice may vary. an important part of a law practice. There are several
Lawyers may choose to maintain their own books and kinds of accounting systems: manual double entry, “one­
records through manual or computerized accounting write,” spreadsheet software, general accounting
systems or may choose to delegate these tasks to a software, and law-firm specific accounting or practice-
trained staff member or to a third-party accountant or management software (legal accounting software).
bookkeeper. Whatever choice the lawyer makes, the When choosing an accounting system, lawyers should
lawyer is ultimately responsible for ensuring that client consider what will work best for their practice by
and firm funds are properly accounted for and that the assessing
appropriate books and records are maintained in
ƒ the number of transactions they have or expect to
accordance with By-Law 9, made under the Law Society have;
Act (Act).
ƒ whether they maintain their own records or hire
1. Accounting in a law practice someone to do them;
ƒ what they can afford; and
Lawyers must use proper accounting principles and
procedures to have a successful practice. This obligation ƒ how well they understand bookkeeping and
includes recording transactions as they occur, regularly computer programs.
reviewing records and transactions, and preparing and The Law Society cannot make this decision for the
reviewing financial statements. Lawyers who fail to do lawyer. Lawyers must determine what is appropriate for
any one of these may face difficulties with clients over their practice needs. The following is a comparison of
billings or discipline by the Law Society of Ontario. five main types of accounting systems.
Lawyers should be aware of bookkeeping principles and

Type of System Advantages Disadvantages

manual double entry  simple - time consuming if many transactions

 inexpensive - does not automatically post to sub-ledgers
- arithmetic errors more common

one write  simple - time consuming if many transactions

 inexpensive - arithmetic errors more common
 posts to sub-ledgers

spreadsheet software  inexpensive - time consuming if many transactions

 automatic calculations - requires training
- formula errors are difficult to detect

general accounting software  automatic calculations - reports not designed for trust accounting
 posts to sub-ledgers - requires training
 produces financial reports

legal accounting software  designed for trust accounting - expensive

 automatic calculations - requires training
 posts to sub-ledgers
 produces financial reports

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

When using an electronic or computerized method for produce records regarding the personal account, which
accounting and bookkeeping, the lawyer must ensure may include personal transactions not related to the
that the computer program can produce hard copies of practice. To avoid having to reveal personal financial
documents to meet the requirements of By-Law 9. The information unrelated to the practice, lawyers should
lawyer should also implement proper security, backup, open a separate account for the practice. In addition, the
and disaster recovery plans to ensure that this lawyer’s personal account may not generate the
information can be recreated if damaged or lost. appropriate statements, returned cheques, and
duplicate deposit slips required for general accounts
2. Bank accounts in a law practice under By-Law 9.
Lawyers may open as many bank accounts as required to
3.1 Depositing to the general account
meet the needs of their law practice. Every account must
(general receipts)
be operated, and account records maintained, in
accordance with Law Society requirements. Most Often, a lawyer’s fee income will be the only income for
practices will have at least one “general account” for the the law practice. To generate a steady cash flow, lawyers
business of the practice and one mixed “trust account” should consider establishing a routine of billing clients
to hold client funds. However, depending on the practice at regular intervals, which should be disclosed to and
structure and nature of the lawyer’s practice, not all agreed upon with the client. This will assist lawyers in
lawyers operate both general and trust accounts. For managing their income throughout the year and will
example, lawyers practising law or providing legal assist them in meeting their financial obligations related
services through civil society organizations are to the practice. Interim bills keep the client informed as
prohibited from operating trust accounts in connection to the ongoing cost of the matter, even in cases where the
with those services. Lawyers who do not accept or hold client has provided the lawyer with a money retainer for
client funds in trust are not required to operate a trust future services. Providing the client with interim bills
account. will allow the client to avoid a large payment at the end
of the retainer and help manage client expectations.
Lawyers must not mix firm funds with client funds. If a
lawyer intends to receive client funds and hold them for When the lawyer receives a payment from a client for
any period of time, the lawyer must operate a trust fees that have been earned and billed and for
account separate from any other account containing the disbursements paid by the lawyer on the client’s behalf,
lawyer’s or the firm’s funds. Lawyers must not deposit that money belongs to the lawyer or law firm and must
client money directly into the general account and must be deposited into the general account. Lawyers may
not deposit personal or firm money into the trust make deposits to the general account by whatever
account unless otherwise permitted under the by-laws. method they choose as long as the method used provides
the “source documents” (records of the financial
Lawyers should note that the rules relating to
transaction) required under By-Law 9. Deposits to the
accounting, bank accounts, and bookkeeping apply to
general account must be recorded in the “general
individual lawyers who practise law or provide legal
receipts journal” (all accounting documents are
services as sole practitioners and to every lawyer
explained further in the “Record-keeping requirements”
member of a law firm, including lawyers who are
section of this chapter).
employees.
3.2 Withdrawing from the general account
3. General account (general disbursements)
A “general account” is an operating account used by a Payments for a lawyer’s or law firm’s expenses will come
lawyer or law firm to run the law practice. The money from the general account since it is an operating or
deposited or held in the general account belongs only to business account. These payments may include
the lawyer or to the firm, and no client money can be
directly deposited to this account. Payments from clients ƒ professional regulation and liability insurance
fees;
for services already provided and billed by the lawyer or
firm should be deposited to this account. ƒ lease or rent for office space;
ƒ employee salaries;
A lawyer may use a personal bank account as a general
account for the practice, but this is not recommended. ƒ business expenses (e.g., office utilities, bank fees,
courier, and postage);
Records of any bank accounts used in a law practice
must be produced upon request of the Law Society. ƒ office supplies;
Lawyers using personal accounts would be required to ƒ remittance of Harmonized Sales Tax (HST);

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

ƒ bank fees (for both the general and trust of purchase and sale, and retainers for future legal
accounts); services or future disbursements or funds for legal
ƒ transaction fees for accepting credit or debit card services not yet billed to the client. These funds belong
payments (for both the general and trust to the client and are held in the lawyer’s trust account for
accounts); and the benefit of that client. Any unused trust funds
ƒ disbursements paid on a client’s behalf when there belonging to a client must be returned to the client at the
are no or insufficient client funds in trust. end of the retainer.
Lawyers may make withdrawals from the general Part II of By-Law 9 prohibits the handling of client funds
account by whatever method they choose, as long as the and property by a bankrupt licensee within the meaning
method used provides the source documents required of the Bankruptcy and Insolvency Act, unless the Law
under By-Law 9. Withdrawals from the general account Society provides the individual special permission to do
must be recorded in the “general disbursements so. That permission may be subject to any terms and
journal.” Ideally, a lawyer’s or firm’s general receipts conditions that the Law Society deems appropriate.
should match or exceed the general disbursements. Suspended lawyers have similar and additional
3.3 Harmonized Sales Tax (HST) requirements relating to the handling of client funds and
property as outlined in By-Law 9.
If the revenues from a law practice exceed a certain
amount, the lawyer must register with the Canada 4.1 Opening a trust account
Revenue Agency (CRA) to collect and remit HST on To open a trust account, lawyers may need to provide
billings and disbursements. Depending on the firm’s their financial institution with proof that they are
income, the lawyer or firm will be required to remit HST licensed by the Law Society to practise law and provide
monthly, quarterly, or annually. HST is payable by legal services. Each financial institution may have
clients on the lawyer’s fees and some disbursements, as different requirements, which may involve obtaining a
outlined by the CRA. To track the HST receivable on fee letter from the Law Society that confirms the lawyer’s
billings each month, all fee billings should be recorded status or “good standing.” When opening a trust
in the “fees book.” Books and records regarding the HST account, the lawyer must ensure all of the following:
must be up to date since lawyers may be subject to an
HST audit by the CRA. ƒ The trust account is named and designated as a
trust account. This must be clearly indicated on
Where the lawyer has received a money retainer from the statements and cheques for the account.
the client and has billed the client for HST-eligible ƒ The account is in the lawyer’s name or the name of
services, the HST should be removed from trust and the law firm where the lawyer is a partner or is
deposited to the general account or another account employed.
belonging to the lawyer or firm until the lawyer is ƒ The financial institution provides the appropriate
required to remit it to the CRA. source documents for the account.
ƒ The financial institution returns cancelled trust
4. Trust account
account cheques or electronic images of cancelled
Lawyers have special obligations when handling client cheques to meet the record-keeping requirements
funds. Lawyers must preserve money held on the client’s under By-Law 9.
behalf. Mishandling of client funds may result in ƒ The financial institution will not withdraw money
discipline by the Law Society. When a lawyer receives from the trust account (unless authorized by the
money that belongs to a client or is to be held on behalf lawyer in respect of interest earned on a trust
account, as discussed below), including service
of a client, the lawyer must deposit it into a trust account.
fees to operate the trust account.
Because client funds must be held in trust by the lawyer,
they are also known as “trust funds.” Under r. 3.2-7.3 of Lawyers are responsible for the costs related to opening
the Rules, a lawyer may only use a trust account for and operating a trust account. Lawyers must report to
purposes related to the provision of legal services; the the Law Society when they have opened or closed a trust
lawyer must not hold money in trust if it is not directly account and must provide written instructions to the
related to the legal services being provided to the client. financial institution to ensure that any banking fees or
Examples of funds that belong to the client and must be service charges associated with operating the trust
deposited into the trust account include settlement account are withdrawn from the general account. These
funds held pending completion of conditions, funds fees must not be taken from the trust account because
received by a lawyer pursuant to an escrow agreement or the money contained in the trust account belongs to the
deposits received from a purchaser under an agreement client. Lawyers may consider opening their general

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

account at the same financial institution where they have money market fund and Treasury bills) are identical to
their trust account(s). This may reduce the number of the requirements for interest-bearing trust accounts.
trips to the financial institution and may reduce the
4.1.2 Financial institutions for trust
likelihood of mistakenly debiting the trust account for
accounts
operating fees or service charges.
Lawyers may open trust accounts at any financial
4.1.1 Types of trust accounts institution outlined in By-Law 9, such as a
Lawyers may open a “mixed trust account” where funds ƒ chartered bank;
belonging to different clients are pooled. As outlined in
ƒ provincial savings office;
s. 57(2) of the Act, the interest earned on a mixed trust
account must be remitted by the financial institution to ƒ registered trust company; and
the Law Foundation of Ontario (LFO) for the benefit of ƒ credit union or league under the Credit Unions
various law-related organizations and projects. The and Caisses Populaires Act, 1994.
mixed trust account must bear interest at a rate Lawyers are not required to have all of their accounts at
approved by the trustees of the LFO. Lawyers must the same financial institution, but this may be more
provide their financial institution with a letter of convenient for their practice. When selecting a financial
direction authorizing them to forward the interest to the institution for the general and trust accounts, the lawyer
LFO. Lawyers should send a copy of this letter to the must make sure that the financial institution can provide
LFO. the necessary source documents to meet the record-
If a client wishes to receive the interest earned on the keeping requirements outlined in By-Law 9. If the
client’s funds, that client must instruct the lawyer to financial institution cannot or will not provide the
open a “separate interest-bearing trust account” for the source documents required, the lawyer should select
client’s funds. The account should still be in the name of another financial institution that will allow the lawyer to
the lawyer or law firm in trust for the client and may only meet these obligations.
hold that client’s funds. As part of the lawyer’s fiduciary 4.1.3 Sharing trust accounts
duties, the lawyer should discuss this option whenever
holding client funds for an extended period of time. The A lawyer may only operate a trust account in their own
lawyer should advise the client that the lawyer is not name or in the name of the firm at which the lawyer is a
providing investment or financial advice, confirm the partner or an employee. A lawyer who is a sole
client’s understanding, and obtain the client’s practitioner and who shares office space or practises in
instructions in writing. association with other sole practitioners is prohibited
from sharing a trust account with those other licensees.
If the client instructs the lawyer in writing to put the
funds in a separate interest-bearing trust account, the 4.2 Depositing to the trust account
lawyer should (trust receipts)

ƒ obtain the client’s social insurance number or Lawyers must deposit into a trust account all of the
business number; following:
ƒ discuss with the client how the interest is to be ƒ money provided to the lawyer by the client to
allocated for income tax purposes since the lawyer secure legal services or as a deposit for the fees
will receive a T5 supplementary income slip from that will be charged for those services (i.e., a
the financial institution for the interest earned; money retainer);
and
ƒ money provided to the lawyer for payment of
ƒ check with the financial institution as to how disbursements that will be incurred on behalf of
much notice is required to have the funds released the client by the lawyer;
and whether earlier redemption will affect the
ƒ money provided to the lawyer by the client to be
interest paid.
held by the lawyer pending the client’s instruction;
Some examples of separate interest-bearing trust ƒ settlement funds that belong to the lawyer’s client
accounts include a savings or passbook account, a that are received by the lawyer from another party
guaranteed investment certificate (GIC), and a term in a matter;
deposit. The lawyer who opens a separate interest- ƒ settlement funds that belong to another party in a
bearing trust account for a client must still meet the matter that are received by the lawyer from the
record-keeping requirements of By-Law 9. The client;
requirements for placing money received in trust into
any other type of income-generating investment (e.g., a

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

ƒ any money that is shared by the lawyer and the application and review their own professional liability
client where it is not practical to split the payment insurance to ensure there are no coverage issues
(e.g., the client overpays a bill rendered to the associated with the use of RDC. When making any
client by the lawyer); and
deposit or transfer to trust, the lawyer must keep the
ƒ any funds withdrawn from the trust account in duplicate deposit slip, the ABM receipt, or the
error.
confirmation provided by the electronic transfer (these
All deposits to the trust account must be entered in the are the source documents).
“trust receipts journal,” and the deposits for each
individual client must be recorded in the “clients’ trust 4.2.2 When to deposit to trust
ledger.” All of the funds a lawyer holds in trust must be Once a lawyer receives trust funds, the lawyer must
allocated to the lawyer’s clients. As previously stated, the deposit them into a trust account by the end of the next
lawyer must not deposit money to the trust account if it banking day.
is not directly related to the legal services the lawyer is
providing to the client, nor is the lawyer permitted to 4.3 Withdrawing from trust (trust
keep, in trust, money related to legal services being disbursements)
provided beyond a minimally reasonable amount of time A lawyer must not withdraw more money from the trust
after the legal services have been performed. Lawyers account than is being held in trust for that specific client.
may not have “miscellaneous” funds, nor can they carry The lawyer must not take funds from the trust account
a float of their own money in the trust account. unless it is permitted under By-Law 9. To withdraw
Lawyers are not required to deposit into a mixed trust funds for any other reason may be considered
account funds that are received from or for a client if misappropriation of trust funds, which is prohibited by
the Rules and reportable to the Law Society. All
ƒ the client requests in writing that the lawyer not withdrawals from the trust account must be recorded in
deposit the money to the mixed trust account (e.g.,
the “trust disbursements journal.”
if the client wants the funds kept in a separate
interest-bearing trust account); 4.3.1 Reasons for withdrawal from trust
ƒ the lawyer deposits the money into an account
kept in the name of the client, a person named by Lawyers must only withdraw from the trust account
the client, or an agent of the client (other than the ƒ money required to pay a client or a person on
lawyer); or behalf of a client;
ƒ immediately upon receiving it, the lawyer pays the ƒ money required to reimburse the lawyer for
money to the client or to a person on behalf of the money spent or expenses incurred on behalf of a
client, following normal business practices. client;
Lawyers must include a description or a record of the ƒ money required to pay the lawyer for fees for
handling of such client funds, in accordance with By- services that the lawyer has performed and for
Law 9. which a bill has been delivered;
ƒ money that is directly transferred into another
4.2.1 Methods for depositing or trust account and held on behalf of the client; and
transferring funds to trust
ƒ money that does not belong in the trust account
Lawyers may make deposits to their trust account in but was deposited to trust in error.
person at their financial institution, by using an Lawyers must not withdraw money from the trust
automated bank machine (ABM) (also known as an account for any other reason, unless authorized by the
automated teller machine (ATM)), through remote Law Society to do so.
deposit capture (RDC) applications on mobile devices,
or where applicable, by wire or electronic transfer (e.g., 4.3.2 Methods for withdrawal from trust
Internet or electronic banking). If using an ABM, the
When a lawyer withdraws money from the trust account
lawyer must ensure that ATM cards are coded for
to reimburse the lawyer for money spent on behalf of the
deposits only and that security is maintained as if the
client or to pay the lawyer for fees for services that the
funds were dealt with in person through a teller. If using
lawyer has performed and for which a bill has been
RDC, lawyers should use the financial institution’s
issued, the lawyer may do so only by the following
official mobile RDC application and establish protocols
means:
in their legal practice to prevent improper activity.
Lawyers should review the terms of the financial ƒ by cheque, if signed by the lawyer or another
institution’s agreement regarding the use of its RDC licensee authorized to disburse funds from the
lawyer’s trust account(s);

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

ƒ by transfer to the lawyer’s or law firm’s general 4.3.3 Individuals authorized to withdraw
account, authorized by the lawyer in writing and from trust
in accordance with By-Law 9; and
Lawyers must be in control of their trust accounts. A
ƒ by electronic transfer in accordance with By- lawyer who practises law or provides legal services alone
Law 9.
is the only individual who may operate and disburse
These methods for withdrawing from the trust account funds from the trust account. If a lawyer is at a law firm,
provide the necessary records to meet Law Society the managing partner(s) of the firm will likely be the
record-keeping requirements. Lawyers may consider lawyer(s) in control of the firm’s trust accounts.
using these methods when withdrawing money from the
trust account for other reasons as well (e.g., making a If there is only one lawyer with signing authority on the
payment from the trust account to pay a person on trust accounts, it would be prudent to make
behalf of a client). If trust funds are withdrawn by arrangements for another licensee to have signing
cheque, lawyers should consider making a copy of the authority on the trust accounts in case of an unexpected
cheque for the file. Lawyers must never make a trust emergency (e.g., illness, accident, or death) or planned
cheque or bank draft payable to “cash” or “bearer” and absence (e.g., vacation). The chosen substitute must be
should ensure that they limit who may access the above insured and entitled to practise law or provide legal
methods for withdrawal from trust. services in Ontario. The lawyer may arrange this by
means of a power of attorney for the practice and by
When withdrawing trust funds by electronic transfer, including relevant clauses in the lawyer’s will. In such
which includes using the Internet, lawyers must start the cases, the lawyer may also want a person who knows the
process by completing an “electronic trust transfer practice (e.g., law clerk, accountant, or bookkeeper) to
requisition” (Form 9A) for their records. The software review and co-sign any trust cheques. This will assure
must require two persons to effect the transfer: one to and assist the substitute who may have to make
input the transfer transaction details and one to payments of funds from the trust account.
authorize the transfer. These two people must be
identified by passwords or other means and cannot Lawyers may wish to use the co-signature of a non-
share the same password. However, By-Law 9 provides licensee employee (e.g., an office administrator or
an exception to the two-person requirement if the lawyer bookkeeper) on all trust cheques as an internal measure
is a sole practitioner who practises law or provides legal (i.e., the non-licensee will not be recognized by the bank
services alone, without employees. In any case, the as having signing authority). Lawyers must not allow
system must generate a confirmation of the transaction such an employee to be able to disburse trust funds
details, including all of the information required under alone. To ensure that no unauthorized withdrawals from
By-Law 9. The lawyer must compare the system trust are being made, the lawyer should limit access to
confirmation printout with the previously completed blank trust account cheques and electronic banking
Form 9A and must sign and date the confirmation software and passwords. The lawyer should never sign a
printout to ensure that the transaction details were trust cheque that is missing any information (e.g., payee,
properly sent to and received by the financial institution. amount, and date) or leave signed blank trust cheques to
The lawyer must also write the client name, client be filled in by anyone at a later time. The lawyer should
matter, and any file number on the printed use pre-numbered trust cheques and keep them secured
confirmation. This comparison must be completed by when not in use.
the close of the banking day immediately after the day 4.3.4 Withdrawal from trust in error,
on which the electronic transfer of funds is authorized. corrections
The Form 9A and printed confirmation should be kept
in numerical order with the lawyer’s financial records. A If the lawyer’s financial institution withdraws service
sample completed Form 9A has been included in the fees from the trust account instead of the general
final section of this chapter. account, the lawyer must ensure that the error is
corrected and the funds are returned to trust
Lawyers must not use an ABM to withdraw funds from immediately. If necessary, the lawyer may have to
trust since an ABM does not provide adequate papers or correct this by depositing the lawyer’s own funds to
documents to meet the record-keeping requirements of trust. Though the lawyer’s account statement may show
By-Law 9. this, the lawyer should request something in writing
from the financial institution for the lawyer’s records to
confirm when the error occurred, that it was the fault of
the financial institution, and when it was corrected.

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

If a lawyer mistakenly withdraws funds from trust, the 5. Receiving money from clients
lawyer must return those funds to trust immediately Subject to the provisions of By-Law 9 that relate to cash
after the error is discovered. If a lawyer mistakenly transactions, a lawyer or law firm may choose to accept
disbursed funds on the client’s behalf that the client did payment from clients using any method, including
not have in trust, the lawyer should transfer funds from
the general account to cover the shortfall immediately. ƒ electronic or wire transfer;
Correcting entries must also be made to the clients’ trust ƒ cash;
ledger, trust receipts journal, and trust disbursements ƒ credit or debit card;
journal. To avoid confusing blank trust account cheques
ƒ personal cheque or certified personal cheque; and
with blank general account cheques, lawyers should
ensure that they are easily distinguished from each other ƒ bank draft or money order.
(e.g., a different style or colour) and are stored Lawyers who accept payment by electronic or wire
separately. Trust account cheques should include the transfer will need to provide the trust or general account
phrase “In Trust.” details to the party sending payment. Lawyers should
confirm with their financial institution that these details
4.4 Unclaimed trust funds may be used for deposit only. If a lawyer chooses to
Lawyers should review the clients’ trust ledger regularly accept payment by cash, credit or debit card, or personal
to ensure there are no client funds sitting in trust that do cheque, the lawyer must be aware of the responsibilities
not belong there. Once the client has been billed for discussed below.
services rendered, lawyers should pay themselves from
5.1 Restrictions on accepting cash
the client’s funds in trust as soon as it is practical. If a
trust cheque issued to the client or a third party has not As part of its mandate to govern the legal professions in
yet been cashed, the lawyer must follow up with the the public interest, the Law Society has adopted
payee to ensure that the payee received the cheque or to provisions to assist in the prevention of money
find out why it was not cashed. laundering. These address the handling and record
keeping of cash transactions and are contained in
Trust cheques may become stale dated and non­
Part III of By-Law 9. For the purposes of this by-law,
negotiable if they remain outstanding for too long. Stale-
“cash” means
date periods vary with the financial institution and may
be anywhere from six months to a year. Once a trust ƒ current coin within the meaning of the Currency
cheque written by the lawyer becomes stale dated, the Act;
lawyer should ƒ notes intended for circulation in Canada issued by
the Bank of Canada pursuant to the Bank of
ƒ contact the financial institution to stop payment Canada Act; and
on the cheque;
ƒ current coin or bank notes of countries other than
ƒ re-enter the amount of the cheque in the clients’ Canada.
trust ledger for that client; and
For any one client file, a lawyer must not receive or
ƒ reissue the trust cheque, if appropriate.
accept cash in an aggregate amount of more than $7,500
Where the lawyer has money in trust for a client for at Canadian. The same restriction applies to foreign
least two years, the lawyer may apply to have these currency. If lawyers receive or accept cash in a foreign
unclaimed trust funds transferred to the Law Society’s currency, they must convert it to Canadian funds using
Unclaimed Trust Fund if the formula outlined in By-Law 9 to ensure the aggregate
ƒ despite reasonable attempts to locate the client value of cash is no more than $7,500 Canadian. Once
throughout the period of two years, the lawyer converted, if the aggregate amount of foreign currency
cannot find the client to whom the funds belong; for any one client file is more than $7,500 Canadian, the
or lawyer may only accept an amount that is up to $7,500
ƒ the lawyer does not know to whom the funds and must tell the client that the remainder must be
belong. provided to the lawyer by some other method (e.g.,
The fund is operated by the Law Society’s Trustee credit card, debit card, or cheque).
Services Department in accordance with s. 59.6 of the The cash limit applies when, in respect of a client file, the
Act and By-Law 10, made under the Act. Information lawyer engages in or gives instructions with respect to
regarding the fund is available on the Law Society’s the following activities:
website.
ƒ The lawyer receives or pays funds.

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

ƒ The lawyer purchases or sells securities, real ƒ issuing a general or trust cheque payable to the
properties, or business assets or entities. lawyer (noting the client file number and that it is
ƒ The lawyer transfers funds by any means. a cash withdrawal), cashing the cheque, and
refunding the cash to the client.
There are some exceptions. The lawyer may receive or
Using a withdrawal slip at the financial institution is the
accept cash in an aggregate amount of more than $7,500
simplest method. Lawyers who use a withdrawal slip
in connection with the provision of legal services in any
should request a duplicate copy of the withdrawal slip
one client file if the cash is received
for their records.
ƒ for fees or disbursements (including a money
retainer), or expenses, provided that any refund If appropriate in the circumstances, the general account
out of such receipts is also made in cash; may be reimbursed from the trust account as permitted
ƒ to pay a fine, a penalty, or bail; by By-Law 9.

ƒ from a peace officer, law enforcement agency, or When the cash is refunded to the client, the lawyer
other agent of the Crown acting in an official should obtain a receipt from the client or have a witness
capacity; or present to document the transfer of cash. Whichever
ƒ from one of the following: method of withdrawal is used, the lawyer should
— a public body; consider obtaining the client’s written instructions prior
to making the withdrawal.
— an authorized foreign bank within the
meaning of s. 2 of the Bank Act in respect of As with any method of payment, lawyers may refuse to
its business in Canada or a bank to which the accept cash from clients. Accepting cash payments to
Bank Act applies;
either the general or trust account will impose additional
— a cooperative credit society, savings and record-keeping requirements upon the lawyer, as
credit union, or caisse populaire that is outlined in the “Record-keeping requirements” section
regulated by a provincial or territorial Act;
of this chapter.
— an association that is regulated by the
Cooperative Credit Associations Act; 5.2 Use of credit and debit cards
— a financial services cooperative that is Lawyers may accept credit card and debit card payments
regulated by An Act respecting financial from clients. Payments for future fees and
services cooperatives (Quebec) or An Act
respecting the Mouvement Desjardins disbursements (i.e., a money retainer) must be
(Quebec) and that is not a caisse populaire; deposited to the trust account. Payments for services
rendered for which a fee invoice has been sent to the
— a credit union central or a federation of credit
unions or caisses populaires that is regulated client must be deposited to the general account. Lawyers
by a provincial, other than Quebec, or must ensure that all merchant discounts and service
territorial Act; charges associated with accepting credit and debit card
— a company that is regulated by the Trust and payments are charged to the general account.
Loan Companies Act (Canada); If the lawyer’s financial institution will only allow one
— a trust company or loan company that is account to be designated for credit and debit card
regulated by a provincial or territorial Act; or deposits, the account the lawyer chooses will dictate for
— a department or agent of His Majesty in right what purpose the lawyer may accept credit or debit card
of Canada or of a province or territory where payments. That is,
the department or agent accepts deposit
liabilities in the course of providing financial ƒ if the lawyer selects the general account, which
services to the public. holds funds that belong to the lawyer or the law
firm, the lawyer may only accept payment by
If the lawyer accepts a cash payment for fees, credit or debit card for services already rendered
disbursements, expenses, or bail, there may be cases and billed to the client; and
where some of those funds must be refunded in cash. To ƒ if the lawyer selects the trust account, which holds
refund money to the client in cash, the lawyer may funds that belong to clients, the lawyer may only
withdraw funds from the general account or trust accept payment by credit and debit card for
account by payment of money retainers.
ƒ completing a withdrawal slip at the financial Lawyers may not make all deposits to one account and
institution for the general or trust account, and then transfer the appropriate amounts to the other
refunding the cash to the client; or account. If a lawyer wishes to accept client credit and
debit card payments for both money retainers and bills,

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the lawyer may have to set up two point-of-sale (POS) trust ledger, with a detailed explanation for the
machines: one for trust deposits and one for general reversal;
deposits. If the lawyer’s financial institution provides a ƒ the lawyer will need to discuss the matter with any
POS machine linked to both the trust and general payees who received trust cheques disbursing
accounts that will allow the lawyer to select to which those client funds to arrange for deferral of
payment;
account the payment should be deposited at the time of
the transaction, the lawyer must use internal controls so ƒ if any of the payees have negotiated the trust
that the appropriate account is selected to receive the cheques, the lawyer must reimburse the trust
account from the lawyer’s own funds (i.e., the
client’s payment. The same is true for Internet-based
general account); and
credit and debit card payment processing services.
ƒ the lawyer must obtain replacement payment from
5.3 Clearance periods the client whose cheque was returned NSF.

When receiving funds in trust that must later be If a lawyer has disbursed funds from trust with respect
disbursed, the lawyer must be aware of the clearance to a client who had insufficient funds in trust, the client
period that applies to the method of payment received. trust ledger account is “overdrawn.” This represents a
“Clearance period” refers to the period of time it will take shortage of client funds, and the lawyer is responsible for
for the funds to actually be available for use. Clearance fixing any such shortages that occur in the trust account
periods will be set by the lawyer’s financial institution immediately by replacing them with the lawyer’s own
(i.e., the receiver of the funds) and vary by method of funds. If the lawyer cannot correct an overdrawn client
payment and financial institution. To ensure compliance trust ledger account with the lawyer’s own funds, the
with the Law Society’s by-laws, lawyers should lawyer has misused or misapplied funds belonging to
determine (i) the clearance periods that apply to each other clients and must report this to the Law Society.
type of withdrawal and deposit, and (ii) the supporting In a situation where the lawyer must disburse client
source documents that will be generated by the financial funds quickly after receiving them in trust from the
institution issuing and receiving the funds. client, the lawyer should request certified funds from the
For example, a standard clearance period for an client. The lawyer should also review the client trust
uncertified personal cheque is from five to 10 business ledger accounts regularly to ensure that there are
days. Once the clearance period has passed and the sufficient funds in trust for the client’s future
funds are in the trust account and may be disbursed, the disbursements and to determine when those funds need
funds are considered “cleared.” Certified cheques, bank to be replenished.
drafts, and money orders are usually considered cleared 6. Record-keeping requirements
as soon as they are deposited because the issuing
financial institution has guaranteed or certified the Part V of By-Law 9 outlines the minimum requirements
funds. However, lawyers should note that the enhanced for books and records to be maintained by licensees.
LAWPRO® protection for counterfeit certified cheques These requirements are designed to protect the public
and bank drafts is subject to additional conditions and and therefore focus on trust records, which are the
limitations. If the lawyer is unsure whether the funds records kept to track the handling of clients’ money held
deposited to the trust account have cleared, the lawyer by the lawyer. Lawyers holding client funds must be able
should call the financial institution for confirmation. to account for those funds to their clients at any time. To
do this, the lawyer must record the money received from
When receiving funds from a client for deposit to the each client, the money disbursed for each client, and
mixed trust account, the lawyer must ensure that the what the unexpended trust balance is for each client.
funds have cleared before disbursing any of those funds. Lawyers must also keep their bank statements as an
If the lawyer disburses client funds before they have independent record or source document of trust
cleared and the client’s original payment is returned transactions.
because of non-sufficient funds (NSF),
Maintaining complete, accurate, and up-to-date records
ƒ the lawyer’s financial institution will debit the
is in the lawyer’s best interests since it will give the
trust account to reverse the deposit;
lawyer the financial information needed to make sound
ƒ the lawyer must ensure that any resulting service financial decisions about the practice. Proper accounting
charges are not deducted from the trust account,
records also help lawyers meet their obligations to file
since they must come from the general account;
reports on time to (i) the CRA for income tax and HST,
ƒ the lawyer must record the reversal of the NSF
(ii) the professional liability insurer, and (iii) the Law
funds in the trust receipts journal and the clients’
Society. Lawyers should also consider the relevant

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sections of the Income Tax Act (Canada) and other each record is described below, and sample documents
relevant legislation that may impose further record- are provided at the end of this chapter.
keeping requirements. Falling behind in record keeping
6.2.1 General receipts journal (6 years)
may cost the lawyer time and money and may damage
client relationships. The general receipts journal tracks all of the money the
lawyer receives, other than money received in trust for
Lawyers who are not familiar with accounting practices
clients. This is money that belongs to the lawyer or law
or who cannot devote the time and effort to maintaining
firm. For each amount of money received in the general
their own books and records as required under By-Law 9
account, the lawyer must record the
should consider delegating these duties. Lawyers may
delegate bookkeeping tasks to trained support staff or to ƒ date money was received;
an independent bookkeeper or accountant who can be ƒ method by which money was received (e.g., cash,
hired for this purpose. Licensees who hire or consider cheque, bank draft, and debit card);
hiring someone to maintain their accounting system ƒ amount of money received; and
should consult with that person before making a
ƒ person from whom money was received.
decision since bookkeepers may not be familiar with nor
comfortable using every accounting system. The lawyer 6.2.2 General disbursements journal
must supervise all staff to ensure that records are (6 years)
complete, current, and accurate.
The general disbursements journal records all of the
6.1 Records must be current, permanent, money disbursed by the lawyer or law firm, other than
and available in paper copy money held in trust for clients. For each amount of
money disbursed from the general account, the lawyer
With the exception of the monthly trust comparison
must record the
discussed later in this chapter, lawyers must keep their
records current at all times. That means they must be up ƒ date the payment was made;
to date or updated daily. The best way to do this is to ƒ method used to make the payment (e.g., cheque,
make or “post” entries to all records on a daily basis. If electronic transfer, and money order);
the lawyer prepares any financial records by hand, these ƒ reference number of the payment method (e.g.,
must also be permanent (i.e., in ink). Lawyers may keep cheque number, Internet banking reference
their financial records electronically but must be able to number, and money order number);
produce paper copies of them promptly when requested ƒ amount of the payment; and
by the Law Society. To avoid problems with computer ƒ person to whom the payment was made.
crashes, data corruption, and software becoming
outdated, lawyers may wish to print on a monthly basis 6.2.3 Fees book (6 years)
journals and records. By-Law 9 outlines the lawyer’s The fees book contains entries for each bill or account
financial record-keeping requirements for both the
issued to clients. Lawyers must keep either a fees book
general and trust accounts in a law practice. or a file containing copies of client bills, ordered by date.
6.2 General account In the fees book, the lawyer must record the

For the general account, a lawyer must keep ƒ amount of fees charged to the client;
ƒ amount of other billings to the client (e.g.,
ƒ a general receipts journal;
disbursements and HST);
ƒ a general disbursements journal;
ƒ date of billing; and
ƒ a fees book or file of client billings; and
ƒ name of the client who was billed.
ƒ source documents for the above.
Lawyers may keep both a fees book and a file of client
Together, the general receipts and general bills, if they wish. For convenience, lawyers should also
disbursements journal may be referred to as the “general keep a copy of the client’s bills in the particular client’s
bank journal.” The Law Society recommends that file. If a lawyer decides to record client billings in a fees
lawyers also maintain a clients’ general ledger, but this book, the lawyer should also enter the billings in the
is not required. As a general rule, lawyers must keep clients’ general ledger, discussed below. The fees book is
most general account records for a period of six years. also where lawyers should track the total HST receivable
This means the current year plus the six previous on fee billings.
calendar years. The information that must be kept in

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6.2.4 Clients’ general ledger (optional) These are all required records. Together, the trust
The clients’ general ledger is not required by Law Society receipts and trust disbursements journal may be
by-laws. It lists every client and tracks all the expenses, referred to as the “trust bank journal.” With the
invoices, and payments relating to each client. The exception of the trust transfer record, all trust records
balance in the individual client’s general ledger shows must be kept for a period of 10 years. This means the
the amount of money that the client owes the lawyer at current year plus the 10 previous calendar years. The
any given time. The balance reflects fee and information that must be kept in each record is
disbursement billings that have been sent to the client described below, and sample documents are provided at
but have not yet been paid for and unbilled the end of this chapter.
disbursements that the lawyer has paid but not yet billed 6.3.1 Trust receipts journal (10 years)
to the clients.
The trust receipts journal tracks the amounts received
Lawyers should review the clients’ general ledger from clients in trust. This is money the lawyer holds for
monthly to assist them in preparing bills for their clients clients. For each amount received in trust for a client, the
and ensure there is not a negative balance in either the lawyer must record the
general receipts or general disbursements for any client.
A negative balance in the client general receipts journal ƒ date money was received;
would indicate the lawyer received an overpayment, ƒ method by which money was received (e.g., cash,
payment for a bill not yet posted, or an amount was cheque, bank draft, and debit card);
transferred from trust that exceeds the amount that was ƒ person or institution from whom money was
billed to the client. A negative balance in the client received;
general disbursement journal would indicate the client ƒ amount of money received;
was billed for a disbursement not yet paid for by the ƒ name of the client for whom money was received;
lawyer or law firm. and

6.2.5 Monthly general reconciliation ƒ reason the money was received in trust (e.g.,
(optional) payment or replenishment of a money retainer).

Lawyers may also wish to do a monthly reconciliation of 6.3.2 Trust disbursements journal
their general account although it is not required by Law (10 years)
Society by-laws. The reconciliation involves checking all The trust disbursements journal tracks payments made
entries in the general account statement against the out of trust on behalf of clients. This is client money the
general account source documents, books, and records lawyer pays out on behalf of the client. For each amount
to ensure that they match. It allows the lawyer to confirm disbursed from trust on behalf of a client, the lawyer
that the statement from the financial institution agrees must record the
with the general account records and to ensure that the ƒ date payment was made;
financial institution has made no mistakes. It also allows
ƒ method used to make the payment (e.g., cheque,
the lawyer to track general account activities, manage
electronic transfer, and money order);
cash flow, and prevent unauthorized spending. A
monthly general reconciliation follows the same ƒ reference number of payment method (e.g.,
cheque number, Internet banking reference
principles as a trust reconciliation, which is explained number, and money order number);
below.
ƒ amount of payment;
6.3 Trust account ƒ person to whom payment was made;
For the trust account, a lawyer must keep ƒ name of the client on whose behalf payment was
made; and
ƒ a trust receipts journal;
ƒ reason the money was paid from trust (e.g.,
ƒ a trust disbursements journal; payment of a disbursement or fee invoice).
ƒ a clients’ trust ledger, with individual client
If withdrawing funds from trust by electronic transfer,
accounts;
lawyers must comply with the requirements for
ƒ a trust transfer record; electronic transfer and complete and keep a copy of the
ƒ monthly trust comparisons; and electronic trust transfer requisition (Form 9A) and bank
ƒ trust account source documents. confirmation of the transfer.

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

6.3.3 Clients’ trust ledger (10 years) ƒ the client trust listing total.
Lawyers must maintain records that show the amount These two amounts must be the same. This is one of the
that they hold in trust for each client separately. Each most important trust records that the lawyer must
client “account” in the clients’ trust ledger tracks the maintain. The lawyer should correct any trust shortages
amount of money received in trust for that client, the immediately and correct any bank or posting errors
amount of money paid from trust on behalf of that client, before the next month end.
and any remaining balance that client has in trust. If
(a) Trust reconciliation
representing a client in more than one matter, the lawyer
will have more than one (client trust ledger) account The “trust reconciliation” is a way to ensure that the
grouped in that client’s trust ledger. amount of money held in trust according to the lawyer’s
trust account statements from the bank agrees with the
The clients’ trust ledger is an important accounting
amount recorded in the lawyer’s books and records.
record because it helps the lawyer to avoid spending
Every month, the lawyer should receive a statement
more money on the client’s behalf than the lawyer holds
from the financial institution showing all transactions
in trust for that client. It also helps the lawyer to identify
processed through the lawyer’s trust account during the
whether the client should provide further funds to
month and the balance at the end of the month. A trust
replenish the money retainer. If the lawyer is not holding
account is “reconciled” by checking all the entries on the
any money in trust for a client, no trust ledger for that
bank statement against the lawyer’s source documents
client is required.
and trust records. This requires the lawyer to check the
6.3.4 Trust transfer record (6 years) statement against deposit slips (i.e., trust receipts),
returned cashed cheques (i.e., trust disbursements), and
Lawyers must also keep a record that shows any
the trust receipts and trust disbursements journal.
amounts of money transferred between clients’ trust
ledger accounts and explains the reason for each The trust reconciliation will identify whether the
transfer. Such a transfer may occur when the lawyer has lawyer’s financial institution made any errors in
opened more than one client trust ledger account for a processing payments made from and deposited to the
particular matter (i.e., the lawyer represents more than trust account. It can also reveal amounts the lawyer may
one party in a joint retainer). The lawyer would also use have forgotten to post to the trust receipts or trust
this record when transferring money between clients’ disbursements journal, such as an electronic transfer of
trust ledger accounts to correct any errors made in an funds in or out of trust. Lawyers must also note any
original posting. For example, if funds received from outstanding items, such as uncashed trust cheques or
Client A were supposed to be deposited to trust but they trust money received on the last day of the month but
were incorrectly posted to Client B’s trust ledger not deposited until the next day (i.e., the first of the
account, the transfer from Client B to Client A to correct following month).
the clients’ trust ledger accounts would be entered in the To complete the trust reconciliation, the lawyer must
trust transfer record. Transfers may also occur between follow all steps in the process outlined below:
different matters of a single client.
(1) Check off all returned or imaged cheques against
6.3.5 Monthly trust comparison the trust bank statement for the previous month,
(10 years) noting any discrepancies in the amounts.
The monthly trust comparison is a required record. It (2) From the trust deposit book, check off all deposits
on the trust bank statement against the duplicate
consists of a detailed listing that shows how much
deposit slips or confirmations, noting any
money is held in trust for each client and a detailed discrepancies in the amounts.
monthly reconciliation of each trust account. The
(3) From the trust disbursement journal, identify any
monthly trust comparison is performed to ensure that
cheques that were issued that have not yet cleared
the lawyer’s trust accounting records agree with the the bank.
bank’s trust account(s) statements. It allows the lawyer
(4) List outstanding cheques by cheque number, issue
to identify any differences that may result from posting date, payee, and amount, and total the amounts.
or financial institution errors. It must be completed by
(5) List any deposits for the previous month, by date
the 25th of each month for all trust funds the lawyer or
and amount, that are not recorded on the trust
law firm held at the previous month’s end. The trust bank statement; these are outstanding deposits.
comparison compares
(6) List any bank errors and/or posting errors
ƒ the reconciled trust bank balance; and individually by date of occurrence and provide a
brief explanation and the date of correction

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

(which correction should be made before the end Regardless of who prepares it, the lawyer should review
of the month during which the lawyer is the trust comparison and all supporting documentation
performing the reconciliation). A copy of any by the 25th of the following month to ensure that
supporting documentation, such as a bank memo,
should be attached to the reconciliation. ƒ the comparison has been completed on time;
(7) From the ending balance on the trust bank ƒ all client trust funds are included (e.g., mixed trust
account statement, subtract the amount of the account, savings or passbook account, GICs, and
outstanding cheques, add any outstanding term deposits);
deposits, and adjust for any bank and posting
ƒ balances of bank statements, savings or passbook
errors to calculate the reconciled trust bank
accounts, GICs, term deposits, etc., are correct;
balance.
ƒ the arithmetic is correct;
(b) Client trust listing ƒ items are reconciled (e.g., bank errors and posting
The “client trust listing” is a monthly list of all clients for errors), cleared each month, explained, and
whom the lawyer or law firm holds money in trust and supported by documentation;
the amount of funds held for each client at the previous ƒ stale-dated cheques are reversed, the client
month end. The items on the list are added, and the total liability is reinstated in the clients’ trust ledger,
and if appropriate, stop payment orders are made
shows how much money is held in trust on behalf of all
and cheques reissued;
clients or owed to clients at that particular month end.
These are the lawyer’s client liabilities. The listing must ƒ clients’ trust ledger accounts are not overdrawn;
include the names of all clients for whom the lawyer or ƒ the amounts in trust for each client are correct;
law firm holds money in trust, either in the mixed trust and
account or separate interest-bearing trust accounts. ƒ any client trust ledger accounts that have not had
any activity in the previous 12 months are
To complete the client trust listing, the lawyer must followed up.
follow all steps in the process outlined below:
6.4 Other record-keeping requirements
(1) From the clients’ trust ledger, identify any client
for whom trust funds were held at the previous In addition to the records lawyers must keep that are
month end. related to the general and trust account(s), By-Law 9
(2) List the client names in a logical order, with the outlines some additional record-keeping requirements.
unexpended trust balance for each client as at the These include maintaining source documents, a
previous month end. duplicate cash receipts journal, referral fee records, and
(3) Include the last activity date for each client’s trust a valuable property record. The details of these records
balance on the client trust listing to help monitor are described below, and selected sample documents are
inactive or dormant amounts. provided at the end of this chapter.
(4) Total the client trust listing.
6.4.1 Source documents — general and
(c) The comparison trust accounts (10 years)

Lawyers must compare the reconciled trust bank Lawyers are required to keep all copies of source
balance with the client trust listing total. This is the documents for both the general and trust accounts of
“monthly trust comparison” that must be completed by their law practice. “Source documents” refer to
the 25th of the following month. If there is a discrepancy documents that are the source of the information
between the reconciled trust account bank balance and entered into the lawyer’s accounting books and records.
the client trust listing total, the lawyer must, as soon as Source documents may be in either paper or electronic
possible, investigate and correct the discrepancy. The form, and lawyers must keep all source documents for 10
lawyer should also make a note in the client’s file of the years. Examples of source documents include
discrepancy, the reasons for the discrepancy, and what ƒ cashed or cancelled general and trust cheques or
steps were taken to correct the discrepancy. If the lawyer electronic images of these;
has only one mixed trust account, the trust
ƒ trust and general account statements from the
reconciliation should agree with the total on the client lawyer’s financial institution;
trust listing. If the lawyer has more than one trust
ƒ general account passbooks and trust account
account, the lawyer should make a list that details each
passbooks;
trust account balance to ensure that none of the trust
ƒ detailed duplicate deposit slips for both the
account balances are missed.
general and trust accounts, either stamped by a

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

teller or with an attached ABM receipt, or an RDC later reimbursed by the client. If the lawyer’s financial
deposit slip; institution does not provide the source documents
ƒ copies of fee invoices to clients if the lawyer does required under By-Law 9, the lawyer will be unable to
not keep a fees book (lawyers should also keep meet the record-keeping requirements and will need to
copies of these invoices in the client files); and switch to another financial institution that will
ƒ completed copies of Form 9A (Electronic Trust accommodate these requirements.
Transfer Requisition) with signed confirmations
attached if the lawyer withdraws from trust via 6.4.2 Duplicate cash receipts book
electronic transfer (lawyers may also wish to keep (6 years)
a similar form and signed confirmations for
electronic transfers from the general account). For every amount of cash the lawyer or law firm receives,
the lawyer must prepare and keep a book of duplicate
There are special considerations for cheque imaging. cash receipts. This is required every time a cash payment
Some financial institutions no longer return the original is accepted, whether it is deposited to the general or trust
cashed cheques to customers, but instead provide an account. The duplicate cash receipt must contain the
electronic image of cashed cheques. These are sent by
email or can be accessed by the customer over the ƒ date cash was received;
Internet. If the lawyer’s financial institution provides ƒ name of the person who gave the cash;
cheque images instead of cancelled cheques, the lawyer ƒ amount of cash received;
must ensure that the images provided are of both the
ƒ name of the client(s) for whom the cash was
front and back of the cancelled cheque and can be easily received;
read. Since there is no guarantee the financial institution
ƒ file number, if any;
will offer access to the images on the Internet
indefinitely, lawyers should print hard copies for their ƒ lawyer’s signature or that of an authorized
designate; and
records or save the images electronically on their own
computers. If keeping them electronically, the lawyer ƒ signature of the person who gave the cash.
must choose a method that allows the lawyer to reprint Lawyers should number their accounting documents in
them throughout the required 10-year retention period sequence, including their duplicate cash receipts. One
and must ensure that backups are made. copy of the receipt should be given to the person who
Similarly, using RDC has additional considerations. provided the cash to the lawyer, and one copy should be
When using a mobile RDC application, a deposit slip kept with the lawyer’s accounting records. Lawyers may
may not be automatically created. The lawyer must also want to prepare the receipt in triplicate and keep the
therefore ensure that an original source document with third copy in the client file.
the required information can be provided through the The lawyer must make reasonable efforts to get the
RDC mobile application’s deposit transaction history. signature of the person who provides the cash. The
Additionally, cheques deposited using an RDC lawyer may need to explain to the individual offering
application should be copied or scanned in PDF for cash why the signature is necessary, outlining the
future reference and compliance with record-keeping lawyer’s obligation under By-Law 9 and that the purpose
requirements. is to prevent money laundering. Not being able to obtain
To maintain detailed duplicate deposit slips, the lawyer that person’s signature does not mean that the lawyer
should record on all copies of general and trust deposit cannot accept the cash, but the lawyer should be wary of
slips the accepting cash from someone who does not want to sign
a receipt. If the person refuses to sign the receipt after
ƒ date the funds were deposited; the lawyer has explained the requirements of the by-law,
ƒ lawyer or law firm’s name if it is not pre-printed; the lawyer should document the efforts to obtain a
ƒ bank account number if it is not pre-printed; signature in accordance with By-Law 9.
ƒ source of each receipt; A lawyer’s support staff may be reluctant to accept
ƒ related client, if applicable; and responsibility for receipt of cash payments. A lawyer who
ƒ amount of funds deposited. decides to make it a policy not to accept cash or cash over
a certain amount should notify prospective clients in
Though not required by the Law Society, lawyers may writing before accepting retainers. Except as outlined in
also wish to keep copies of any invoices paid from the By-Law 9, lawyers may not receive or accept cash in
general account. These would include business expenses respect of any one client file in an aggregate amount of
as well as payments made on behalf of clients that were more than $7,500 Canadian dollars.

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6.4.3 Referral fee records (6 years) they were retained by the client. Apart from recording
For referral fees paid or payable on or after April 28, the valuable property, the lawyer must ensure the
2017, every lawyer who pays or receives a referral fee property is kept in a secure place, such as a safety deposit
must record the following referral fee information in box at a financial institution. The valuable property
accordance with s. 19.1 of By-Law 9: record should

ƒ all referral fees received or paid; ƒ show all property, other than money, held in trust
for clients;
ƒ the date on which the referral fee is received or
paid; ƒ describe each property and the date that the
lawyer or law firm took possession;
ƒ the method by which the referral fee is received or
paid (e.g., cheque, electronic transfer, or money ƒ indicate who had possession of the property
order); immediately before the lawyer or law firm took
possession;
ƒ the reference number of the payment method
(e.g., cheque number, Internet banking reference ƒ show the value of each property;
number, and money order number); ƒ indicate the client for whom each property is held
ƒ the amount of the referral fee; in trust; and

ƒ the licensee from whom the referral fee is ƒ show the date each property is given away and to
received; whom it is given.

ƒ the licensee to whom the referral fee is paid; and The record should document items such as
ƒ the name of the client or client matter for whom ƒ stocks, bonds, or other securities in bearer form;
the referral fee was received or paid. ƒ jewellery, paintings, furs, collector’s items, or any
Lawyers must also retain all documents related to each variety of saleable valuables;
referral fee transaction, including ƒ any property that a lawyer can convert to cash on
the lawyer’s own authority; and
ƒ the referral fee agreement among the referring
lawyer, the licensee who receives the referral, and ƒ mortgages, transfers, or other instruments
the client; registered in the licensee’s name in trust (includes
mortgages or other investment securities held in
ƒ a copy of the fee invoice sent to the client trust by a corporation or other business entity
identifying the referral fee payable; and controlled by a licensee, licensees of a firm, and/or
ƒ the client’s acknowledgment of the referral fee or a the spouse(s) of the licensee(s)).
copy of the lawyer’s written confirmation to the
client of the client’s refusal to provide such 7. Sample documents
acknowledgment.
The following pages show samples of the documents that
Lawyers must keep the above referral fee records for six have been discussed in this chapter:
years. The records must be permanent, current, and able
ƒ Figure 1: General Receipts Journal, General
to be produced promptly upon request by the Law
Disbursements Journal, and Fees Book
Society.
ƒ Figure 2: Clients’ General Ledger
6.4.4 Valuable property record ƒ Figure 3: Trust Receipts Journal, Trust
(10 years) Disbursements Journal, and Trust Transfer
Record
Lawyers are required to keep a record of all negotiable
or valuable property (other than money) that they ƒ Figure 4: Clients’ Trust Ledger
receive that is to be held in trust for clients. The main ƒ Figure 5: Monthly Trust Comparison
reason for the record is to protect the lawyer from any ƒ Figure 6: Duplicate Cash Receipt
allegations from a client or third party that the lawyer
ƒ Figure 7: Valuable Property Record
misappropriated valuable property given to the lawyer
for safekeeping. Lawyers should avoid holding valuable ƒ Figure 8: Sample Electronic Trust Transfer
Requisition (Form 9A)
property for clients for an extended period of time and
should only hold property related to the matter for which

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

Figure 1: General Receipts Journal, General Disbursements Journal, and Fees Book
Leslie Lawyer — General Receipts Journal
Date 2023 Funds Received From Amount Method of Payment
Oct 1 ACME Bank re bank loan 2,500.00 Bank Draft
Oct 7 Stephen Bell re Inv # 0116 5,000.00 Cheque
Oct 12 Angela Finelli re Inv # 0117 1,695.00 Cheque
Oct 30 Transfer from Trust re Piper, Inv # 0118 2,825.00 ET # 0081
Nov 15 Stephen Bell re Inv # 0116 250.00 Cash
Nov 22 Transfer from Trust re Said, Inv # 0119 1,130.00 ET # 0082
Nov 30 Stephen Bell re Inv # 0116 400.00 Cash

Leslie Lawyer — General Disbursements Journal

Date 2023 Method / Ref # Paid To Particulars HST Paid Amount
Oct 1 Cheque # 051 Lucy Landlord Rent 130.00 1,130.00
Oct 12 ET # 0080 ABC Office Supplies Stationery 26.00 226.00
Oct 25 Debit from account Acme Bank Service Fees 2.60 22.60
Nov 1 Cheque Lucy Landlord Rent 130.00 1,130.00

Leslie Lawyer — Fees Book

Disburse. HST Total
Date 2023 Inv # Client Fees Billed Billed Billed Billed
Oct 2 0116 Bell re small claim 5,000.00 650.00 5,650.00
Oct 10 0117 Finelli re traffic 1,500.00 195.00 1,695.00
Oct 25 0118 Piper re small claim 2,500.00 325.00 2,825.00
Nov 17 0119 Said re indictment charge 1,000.00 130.00 1,130.00

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

Figure 2: Clients’ General Ledger

Leslie Lawyer — Clients’ General Ledger
Account: BELL, Stephen re small claim
Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Oct 2 Fees — Inv # 0116 650.00 5,000.00 5,650.00
Oct 7 Client payment 5,000.00 650.00
Nov 15 Client payment 250.00 400.00
Nov 30 Client payment 400.00 0.00

Account: FINELLI, Angela re traffic

Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Oct 10 Fees — Inv # 0117 195.00 1,500.00 1,695.00
Oct 12 Client payment 1,695.00 0.00

Account: PIPER, Jane re small claim

Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Oct 25 Fees — Inv # 0118 325.00 2,500.00 2,825.00
Oct 30 From Trust 2,825.00 0.00
Nov 15 Filing fee 100.00 100.00
Nov 15 From Trust 100.00 0.00

Account: SAID, Ali re indictment charge

Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Nov 17 Fees — Inv # 0119 130.00 1,000.00 1,130.00
Nov 22 From Trust 1,130.00 0.00
Nov 22 Indictment charge 20,000.00 20,000.00
Nov 22 From Trust 20,000.00 0.00

Account: SILVER, David re small claim

Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Nov 28 Filing claim 175.00 175.00
Nov 28 From Trust 175.00 0.00

Account: SILVER, Susan re traffic

Expenses Balance
Date 2023 Particulars Paid HST Fees Payments Owed
Nov 5 Parking ticket payment 90.00 90.00
Nov 5 From Trust 90.00 0.00

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

Figure 3: Trust Receipts Journal, Trust Disbursements Journal, and Trust Transfer Record
Leslie Lawyer — Trust Receipts Journal
Date Funds Received Method of Reason
Amount
2023 From Client Payment
Oct 12 Jane Piper Piper re small claim 3,000.00 Cheque Retainer payment
Nov 1 Susan Silver Silver re traffic 100.00 Credit Card Retainer payment
Nov 8 Jane Piper Piper re small claim 1,250.00 Cheque Retainer payment
Nov 15 Ali Said Said re indictment 21,130.00 Cert. Cheque Bail payment
charge ($20,000.00) and
replenish retainer
payment ($1,130.00)
Nov 18 David Silver Silver re small claim 200.00 Credit Card Retainer payment

Leslie Lawyer — Trust Disbursements Journal

Date 2023 Method / Ref # Paid To Client Amount Reason
Oct 30 ET # 0081 Leslie Lawyer Piper re small claim 2,825.00 Payment for
legal fees
incurred and
billed
Nov 5 Cheque # 012 City of Toronto Silver re traffic 90.00 Payment for
parking ticket
Nov 15 Cheque # 013 Minister of Finance Piper re small claim 100.00 Filing fee for
Notice of
Garnishment
Nov 22 Cheque # 014 Minister of Finance Said re indictment 20,000.00 Bail payment
charge
Nov 22 ET # 0082 Leslie Lawyer Said re indictment 1,130.00 Payment for
charge legal fees
incurred and
billed
Nov 28 Cheque # 015 Minister of Finance Silver re small claim 175.00 Filing fee for
defence

Leslie Lawyer — Trust Transfer Record*

Date 2023 From Client To Client Amount Reason
Nov 30 Susan Silver re David Silver re small 10.00 Unused retainer, completed matter;
traffic claim on Susan Silver’s written direction

* In this example, Susan Silver’s traffic matter is now over, and she has already been fully billed for the services provided.
Susan Silver provided written instruction to Leslie Lawyer to transfer any remaining retainer balance from the traffic matter
to Susan’s son’s account for the small claims matter that Leslie Lawyer is also handling. A trust transfer entry is required for
transfers between clients as well as matters for the same client.

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

Figure 4: Clients’ Trust Ledger

Leslie Lawyer — Clients’ Trust Ledger
Account: PIPER, Jane re small claim
Date 2023 Particulars Receipts Disbursements Balance in Trust
Oct 12 Retainer re small claim 3,000.00 3,000.00
Oct 30 Transfer to General
2,825.00 175.00
Invoice # 0118
Nov 8 Retainer re small claim 1,250.00 1,425.00
Nov 15 Notice of garnishment 100.00 1,325.00

Account: SAID, Ali re summary charge

Date 2023 Particulars Receipts Disbursements Balance in Trust
Nov 15 Bail advance & retainer 21,130.00 21,130.00
re summary charge
Nov 22 Bail payment 20,000.00 1,130.00
Nov 22 Transfer to General
1,130.00 0.00
Invoice # 0119

Account: SILVER, David re small claim

Date 2023 Particulars Receipts Disbursements Balance in Trust
Nov 18 Retainer re small claim 200.00 200.00
Nov 28 Filing claim 175.00 25.00
Nov 30 Transfer from S. Silver 10.00 35.00

Account: SILVER, Susan re traffic

Date 2023 Particulars Receipts Disbursements Balance in Trust
Nov 1 Retainer re traffic 100.00 100.00
Nov 5 Parking ticket payment 90.00 10.00
Nov 30 Transfer to D. Silver 10.00 0.00

* No trust ledger accounts were created for Angela Finelli or Stephen Bell since no money is being received in trust for
them. Leslie Lawyer is simply billing these clients as services are being rendered, with no advance of a money retainer.

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CHAPTER 14 PROFESSIONAL RESPONSIBILITY

Figure 5: Monthly Trust Comparison

Leslie Lawyer
Trust Bank Reconciliation as at November 30, 2023
Mixed Trust Account:
Balance per Bank Statement $21,533.00
Less: Outstanding Cheques (see list below) 20,175.00
Plus: Outstanding Deposits — 30Nov23 0.00
Plus: Bank Error- 11Nov23 2.00
Chq# 062 cleared as $344.00 s/b 342.00, corrected 18Dec23 by credit memo
Reconciled Mixed Trust Bank balance at November 30, 2023 $ 1,360.00

Outstanding Cheques:
Cheque # Date Amount
014 22Nov23 $20,000.00
015 28Nov23 175.00
Total Outstanding Cheques: $20,175.00
Client Trust Listing as at November 30, 2023
(from clients’ trust ledger balances)
File Name Last Activity Date Amount
PIPER, Jane re small claim 15Nov23 $1,325.00
SAID, Ali re summary charge 22Nov23 0.00
SILVER, David re small claim 28Nov23 35.00
SILVER, Susan re traffic 05Nov23 0.00
Total client funds in trust: $1,360.00
Total trust liabilities to clients at November 30, 2023 $ 1,360.00
Trust Comparison as at November 30, 2023
Total Reconciled Trust Bank Balance $ 1,360.00
Total of unexpended balances per Clients’ Trust Ledger $ 1,360.00

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ACCOUNTING, BANK ACCOUNTS, AND BOOKKEEPING CHAPTER 14

Figure 6: Duplicate Cash Receipt

DUPLICATE CASH RECEIPT # 0001

Date

Received from the amount of $

On behalf of for file #

Signature of Payor [person paying cash] Authorized signature on behalf of [name of firm]

Figure 7: Valuable Property Record

Description Date Received Value of Date

Client of Property Received From Property Given To Given
BELL, Stephen pearl necklace 01Dec22 BELL, Stephen 530.00 BELL, Allison 02Jan23
SILVER, Susan silver 01Jan23 SILVER, Susan
475.00
jewellery
FINELLI, Angela collector 07Feb23 FINELLI,
320.00
plates Angela

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Figure 8: Sample Electronic Trust Transfer Requisition (Form 9A)

[sample] FORM 9A
ELECTRONIC TRUST TRANSFER REQUISITION
Requisition #ET0081

Amount of funds to be transferred: $2,825.00

Re: PIPER small claim
Client: Jane Piper
File No.: 10-47
Reason for payment: Fees ($2,500.00) disbursements ($0.00) and HST ($325.00) billed to client
Trust account to be debited: Name of financial institution: Bank of Ontario
Account number: 123456789
Name of Recipient: Leslie Lawyer, General Account

Account to be credited: Name of financial institution: Bank of Ontario

Branch name and Address 20 Downtown St., City, ON Z9Y 2T2
Account number: 987654321

Person requisitioning electronic trust transfer: Leslie Lawyer

October 30, 2023 Leslie Lawyer

Date Signature

Additional transaction particulars:

Person entering details of transfer:

Name: Sandy Secretary Sandy Secretary

Signature
Person authorizing transfer at computer terminal:

Name: Bobby Bookkeeper Bobby Bookkeeper

Signature

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 Chapter 15
Indigenous peoples of Canada: history and current
legal issues

The aim of this chapter is to encourage a fuller men. … Over time, the Métis have developed distinct
understanding of working with and serving Indigenous communities and cultures. …
peoples and communities. These intercultural Inuit are the descendants of the original inhabitants of
interactions should be viewed as an opportunity for the Arctic territory. …
continued advancement toward reconciliation rather than All three subgroups have constitutional protection as “the
a problem in need of a solution. aboriginal peoples of Canada” under s. 35 of the
The Guide for Lawyers Working with Indigenous Peoples Constitution Act, 1982. And all three subgroups are
(Guide) is a uniquely collaborative resource developed by “Indian” for the purposes of federal jurisdiction under
the Indigenous Bar Association, the Advocates’ Society, s. 91(24) of the Constitution Act, 1867 (Reference as to
and the Law Society of Ontario in 2018 (a supplement whether “Indians” includes in s. 91 (24) of the B.N.A. Act
appeared in 2022). The Guide states, “There is no such includes Eskimo in habitants of the Province of Quebec
thing as a culturally neutral practice of law.” Similarly, (regarding Inuit); Daniels v. Canada (Indian Affairs and
there is no monolithic Indigenous culture, but rather a Northern Development) (regarding Métis)).
large diversity of laws, cultures, languages, and histories.
1.2 Indigenous culture
Licensees should therefore be mindful of this and seek to
understand the unique experiences of the communities There are over 1.6 million people of Indigenous ancestry
and individuals with whom they are working. in Canada speaking over 70 different languages. There is
not one Indigenous culture but a rich tapestry of unique
There are, however, some shared histories and impacts of histories, languages, values, and traditions. Similarly,
colonization, particularly the efforts of colonial and there is no one uniform Indigenous legal tradition. For
Canadian governments to assimilate and eradicate entire example, Professor John Borrows notes that the stories
peoples, which have left a multi-generational legacy. told in the Big Houses of the Salish differ from those
Licensees should be conscious that some clients will have spoken in the Longhouses of the Haudenosaunee, the
undergone varying degrees of trauma as a result. This ceremonies of the Potlatch of the West Coast produced
chapter is intended to be part of an ongoing nationwide entirely different legal relationships from those of the
process of reconciliation. Sundance on the Prairies, and this diversity gave rise to
1. Indigenous culture, governing systems, many different legal systems (John Borrows, “Indigenous
and law Legal Traditions in Canada” (2005) 19 Wash. U.J.L. &
Pol’y 167).
Much of the information found in this section comes from
the Guide and the Royal Commission on Aboriginal Land and water are central to numerous Indigenous
Peoples (RCAP) in its 1996 Report of the Royal cultures, spiritual practices, and ceremonies. The
Commission on Aboriginal Peoples (RCAP Report), which Assembly of First Nations notes:
remains one of Canada’s most authoritative resources on First Nations’ people have a special relationship with
Indigenous matters. the earth and all living things in it. This relationship is
based on a profound spiritual connection to Mother
1.1 Definitions/glossary of terms Earth that guided indigenous peoples to practice
reverence, humility and reciprocity. … Everything is
Broadly speaking, Indigenous peoples in the land now taken and used with the understanding that we take
called Canada belong to three broad subgroups: First only what we need, and we must use great care and be
Nations, Métis, and Inuit peoples. The Guide provides: aware of how we take and how much of it so that future
generations will not be put in peril.
First Nations people are the descendants of the original
inhabitants of the territory south of the Arctic. … The The Guide explains, “In some Indigenous societies,
term “First Nations” came into use in the 1980’s to women are recognized as keepers/protectors of the water
replace the term “Indian,” which was a colonial term because of their sacred role in bringing forth and carrying
defined in the Indian Act.
life in their birth water.” Knowledge of these sacred roles
Métis people are the descendants who were born of and the associated ceremonies and spirituality is highly
relations between First Nations women and European
valued within Indigenous communities and is possessed

137
CHAPTER 15 PROFESSIONAL RESPONSIBILITY

by knowledge holders or faith keepers, sometimes referred 1.4 Indigenous law

to as Elders. The term “Elders” does not refer to the While anything more than a cursory introduction to
chronological age of a person, but rather to persons who Indigenous laws is beyond the scope of these Study
have been “recognized, formally or informally, by their Materials, Indigenous legal traditions were the first laws
community as having deep and/or specialized knowledge of the land that would become Canada, and they continue
related to a community or First Nation’s culture, language, to form part of the legal fabric of Canada. Professor John
history, ceremonies, and/or medicines.” Borrows writes in Canada’s Indigenous Constitution that
1.3 Governing systems of Indigenous these laws may be characterized as (1) Sacred, (2) Natural,
peoples (3) Deliberative, (4) Positivistic, and (5) Customary. He
states in “Heroes, Tricksters, Monsters, and Caretakers:
For most Indigenous nations, governance and
Indigenous Law and Legal Education,” (2016) 61 McGill
governments have always been closely connected with the
L.J. 795:
family, the land, and a strong spirituality viewed in a
holistic way as inseparable from the totality of communal Despite centuries of dispossession, Indigenous legal
traditions are vibrant sources of knowledge. They
practices that make up a way of life.
pragmatically exist in finding answers to complex and
However, the forced imposition of the Indian Act in 1876 pressing legal questions and contain significant sources
of authority. They are precedential, that is, standard
introduced a municipal style of government, displacing setting, and generate criteria for making sound
traditional forms of governance. It also introduced the judgments. Indigenous law helps produce binding
election of chiefs who were usually men, to the measurements through persuasion and compulsion, is
disempowerment of women. The Indian Act system attentive to ethical redress and remedial actions when
sought to displace the social cohesion of the clan system harm has occurred, and facilitates genuine gift giving
whereby the particular characteristics of each clan and bequests. Indigenous laws can be constitutional.
contributed to the whole of governance. Instead, majority They can support the creation of internally binding
voting was privileged over consensus decision making, obligations. Indigenous peoples’ own legal systems also
and patriarchy displaced matrilineal systems. undergird the creation of intersocietal commitments
with external bodies. Evidence of Indigenous laws’ force
Today, many First Nations continue to exercise
is found in various agreements related to consultation,
jurisdiction over their lands and resources within their
accommodation, contractual matters, and treaties.
territorial boundaries under the Indian Act. However, Indigenous laws are also a key ingredient in protecting
efforts are also being made to move beyond the group and individual privileges and freedoms.
constraints of this federal legislation; these are detailed
more fully in “Path to self-government,” below. 2. History of Indigenous–Crown relations

As regards governance, the majority of First Nations In order to have a better understanding of the unique
governments are composed of a chief and councillors who historical and contemporary challenges facing Indigenous
are responsible for making decisions on behalf of the First peoples and communities, key events in the history of
Nation and its members. The selection of a chief and Indigenous-Crown relations must be explained. The first
councillors can be held in one of four ways: four stages described in this section are based upon the
four historical stages identified by the RCAP Report.
1. following the steps outlined in the Indian Act and
the Indian Band Election Regulations, C.R.C. 2.1 Stage 1: separate worlds and first
c. 952, made under the Indian Act; contact
2. using the new and optional First Nations Elections
Act; People to People, Nation to Nation: Highlights from the
Report of the Royal Commission on Aboriginal Peoples
3. following the procedures set out in a community’s
states that, before the 1500s, “Aboriginal societies in the
constitution as part of a self-government
agreement; or Americas and non-Aboriginal societies in Europe
developed along separate paths, in ignorance of one
4. using a community leadership selection process
another.” Chief Justice John Marshall of the U.S. Supreme
(also called “band custom”).
Court described this state of affairs as follows in
If providing legal advice to a First Nations community, Worcester v. State of Georgia:
licensees should familiarize themselves with the
America, separated from Europe by a wide ocean, was
community’s leadership selection method.
inhabited by a distinct people, divided into separate
nations, independent of each other and the rest of the
world, having institutions of their own, and governing
themselves by their own laws. It is difficult to

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INDIGENOUS PEOPLES OF CANADA: HISTORY AND CURRENT LEGAL ISSUES CHAPTER 15

comprehend … that … discovery of [the Americas by Indigenous nations could cede their lands to the British
Europeans] … should give the discoverer rights in the Crown pursuant to treaty negotiated properly between the
country discovered which annulled the previous rights
of its ancient possessors. Crown and “assemblies of Indians” called for the purpose
of considering such cession.
Justice Marshall is referring to the “doctrine of discovery,”
which was a legal convention codified in 1823 by the U.S. Both Indigenous and European traditions contributed to
Supreme Court in Johnson v. M’Intosh. This ruling made the making of such treaties. The result was that both
frequent reference to rights that accrued to European peoples were able to share land and resources and live
nations by virtue of “discovery.” The doctrine has been peacefully together.
taken to mean that ownership of or sovereignty over land 2.3 Stage 3: respect gives way to
passed automatically to Europeans by virtue of their domination
having “discovered” it, irrespective of the presence of
previous Indigenous occupants. It has thus served as legal Significant changes in the 19th and 20th centuries
justification for the dispossession of Indigenous peoples transformed the relationship between Indigenous peoples
from their lands. and the Crown. The previous attitude of mutual respect
was replaced by a one-sided search for domination. As the
Under the closely related concept of terra nullius legislation of the period demonstrates, the British Crown’s
(literally, “no one’s land”), newly “discovered” territories objective was, first, to remove Indigenous peoples from
belonged to no one and hence could be freely acquired by their traditional territories to make way for European
the “discoverers.” The concept of terra nullius provided settlement and resource development and, second, to
another erroneous basis for colonialist expansion assimilate Indigenous peoples into the European culture.
throughout North America. As a result, the influence of Indigenous peoples in
Both the doctrine of discovery and the concept of terra political, military, and economic affairs diminished, while
nullius have been soundly rejected. As the unanimous the settler population increased and displacement of
Supreme Court of Canada stated in 2004, “Canada’s Indigenous populations became more widespread. In
Aboriginal peoples were here when Europeans came, and addition, traditional Indigenous governance systems were
were never conquered” (Haida Nation v. British undermined, and overt discrimination became
Columbia (Minister of Forests)). entrenched.
In support of these ends, the Crown put in place legislation
2.2 Stage 2: nation to nation
such as An Act to encourage the Gradual Civilization of
Following first contact, the 16th century and the early the Indian Tribes in this Province, and to amend the
colonial period were characterized by a struggle for Law’s respecting Indians in 1857. It was followed by the
dominance among European powers in North America. Indian Act in 1876, parts of which continue to govern the
During this period, strategic alliances with Indigenous lives of Indigenous people today. (Titles of historic
peoples were crucial to Europeans’ survival. legislation, including those that employ language no
The important Royal Proclamation of 1763 represents the longer considered appropriate, are cited in their original
attitude of the European powers towards Indigenous form for the sake of historical accuracy.)
people during this period. Issued by the British Crown, the During this same period, Confederation was declared, and
document’s Preamble states: the Dominion of Canada was formed. The British North
…[I]t is just and reasonable, and essential to Our America Act (now the Constitution Act, 1867) divided
Interest and the Security of Our Colonies, that the property and jurisdiction between the federal and
several Nations or Tribes of Indians, with whom We are provincial governments. The bulk of public lands and
connected, and who live under Our Protection, should resources went to the provinces, but s. 91(24) assigned
not be molested or disturbed in the Possession of such
Parts of Our Dominions and Territories as, not having responsibility over “Indians and lands reserved for
been ceded to or purchased by Us, are reserved for Indians” to the federal Parliament. This division of
them, or any of them, as their Hunting Grounds … powers, about which Indigenous peoples were never
consulted, continues to permeate the relationship
This proclamation was seminal on many fronts. First, it
between Indigenous peoples and their lands.
recognized “Nations or Tribes of Indians”; second, it
recognized the rights of Indigenous peoples to their lands; St. Catherines Milling and Lumber Company v. The
third, it prohibited anyone but the British Crown from Queen illustrates the significance of the federal–provincial
purchasing Indigenous lands, thereby establishing the division of powers upon the lives of Indigenous people and
British Crown as the fiduciary of Indigenous peoples and how such separation frustrated federal efforts to fulfill
Indigenous lands. Finally, it set up a procedure whereby treaty obligations following surrender to the provinces. In

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CHAPTER 15 PROFESSIONAL RESPONSIBILITY

that case, the Judicial Committee of the Privy Council —(2) In this Act, “aboriginal peoples of Canada”
decided in Ontario’s favour concerning a dispute between includes the Indian, Inuit and Métis peoples of Canada.
the federal government and the province over the effect of —(3) For greater certainty, in subsection (1) “treaty
“surrender” of lands under Treaty 3 of 1873. The decision rights” includes rights that now exist by way of land
claims agreements or may be so acquired.
characterized the Aboriginal interest as a “personal and
usufructuary right,” a burden on the provincial Crown —(4) Notwithstanding any other provision of this Act,
interest that evaporated upon surrender. the aboriginal and treaty rights referred to in
subsection (1) are guaranteed equally to male and
The experience of colonization and displacement had a female persons.
profound impact on Indigenous peoples. As the RCAP At the same time, judicial decisions began to inform the
noted: interpretation of Aboriginal rights, title, and status. The
Repeated assaults on the culture and collective identity Supreme Court of Canada has through the decades found
of Aboriginal people … have weakened the foundations the following:
of Aboriginal society and contributed to the alienation
that drives some to self-destruction and anti-social ƒ Aboriginal title does not owe its origin to the
behaviour. Social problems among Aboriginal people common law (Calder et al. v. Attorney-General of
are, in large measure, a legacy of history. British Columbia; Guerin v. The Queen).

2.4 Stage 4: renewal and renegotiation

ƒ Section 35 does not create Aboriginal rights; rather,
Aboriginal rights existed and are recognized under
The relationship between Indigenous peoples and the the common law (R. v. Van der Peet).
Crown reached a new stage in 1969. In that year, the ƒ Indigenous societies had a sovereign dimension
federal government put forth a White Paper, the reflected in treaty partnership (R. v. Sioui).
Statement of the Government of Canada on Indian ƒ Treaties serve to reconcile pre-existing Aboriginal
Policy, 1969 (White Paper). The White Paper proposed to sovereignty with assumed Crown sovereignty
do away with the special legal status of “Indians” and the (Haida Nation).
protection for reserve lands by eliminating the Indian Act ƒ Aboriginal laws may be protected by treaty (R. v.
and s. 91(24) of the Constitution Act, 1867; it offered Marshall).
instead what it termed “equality” with other Canadians. ƒ Extinguishment is not required to reconcile
The White Paper was overwhelmingly rejected by Aboriginal and Crown title (Tsilhqot’in Nation v.
British Columbia).
Indigenous peoples, and the backlash against it heralded
a period of increased activism by Indigenous peoples, ƒ Aboriginal title carries collective decision-making
power regarding land (Tsilhqot’in Nation).
focusing on negotiation, renewal, and eventually,
constitutional reform. ƒ Despite the protections afforded by s. 35(1), it is
possible for federal or provincial law to affect the
In 1982, at repatriation, the Constitution Act, 1982 was exercise of aboriginal rights; however, any such
proclaimed and, with it, the Canadian Charter of Rights incursions on aboriginal rights must be justified (R.
and Freedoms (Charter). Section 25 of the Charter and v. Sparrow).
s. 35 of the Constitution Act, 1982 are relevant to ƒ The government’s duty to consult with Indigenous
Indigenous peoples in Canada. peoples and accommodate their interests is
grounded in the honour of the Crown. The honour
Section 25 of the Charter states: of the Crown is always at stake in its dealings with
25.—The guarantee in this Charter of certain rights and Indigenous people. (Haida Nation)
freedoms shall not be construed so as to abrogate or ƒ The obligation of honourable dealing with
derogate from any aboriginal, treaty or other rights or Indigenous people is a constitutional principle
freedoms that pertain to the aboriginal peoples of (Beckman v. Little Salmon/Carmacks First
Canada including Nation).
(a) any rights or freedoms that have been recognized by ƒ When the implementation of a constitutional
the Royal Proclamation of October 7, 1763; and obligation to an Indigenous people is in issue, the
(b) any rights or freedoms that now exist by way of land honour of the Crown requires that the Crown take a
claims agreements or may be so acquired. broad purposive approach to the interpretation of
the promise and act diligently to fulfill it (Manitoba
Section 35 of the Constitution Act, 1982 provides: Métis Federation Inc. v. Canada (Attorney
General)).
35.—(1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and More information on the Constitution is found in
affirmed. Chapters 71 (Interpreting the Charter) and 74 (Aboriginal

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INDIGENOUS PEOPLES OF CANADA: HISTORY AND CURRENT LEGAL ISSUES CHAPTER 15

and treaty rights; Constitution Act, 1982, section 35) of freely determine their political status and freely pursue
the Barrister Study Materials. their economic, social and cultural development.”
In 1996, the RCAP Report characterized this period of However, neither the federal–provincial division of
renewal as the fourth and last stage of the relationship powers set out in the Constitution Act, 1867 nor the
between Indigenous peoples and Canada. However, since Indian Act, which maintains the colonial hold of the
many of the RCAP’s recommendations went unanswered, federal government, envisages Indigenous self-
this chapter adds a fifth stage: reconciliation. government. Attempts to clarify the meaning of s. 35 of the
Constitution Act, 1982 were undertaken at four
2.5 Stage 5: reconciliation constitutional conferences from 1983 to 1987 in an effort
On September 13, 2007, the United Nations Declaration by Indigenous leaders to elevate the profile of Aboriginal
on the Rights of Indigenous Peoples (UNDRIP) was and treaty rights. However, no agreement on the
adopted by the United Nations General Assembly, recognition of self-government resulted. Later,
consolidating decades of work toward developing Indigenous peoples were excluded from negotiations that
international standards recognizing the rights of led to the failed 1987 Meech Lake Accord. After much
Indigenous peoples. In 2016, the Government of Canada negotiation, all parties agreed in the 1992 Charlottetown
committed to implementing UNDRIP “without Accord on constitutional amendments that included
qualification.” This was one major step toward recognition of self-government for Indigenous people, but
reconciliation. that accord was rejected in a national referendum.

A second essential element in reconciliation involves the In 1995, greater political acceptance of the concept of self-
work of the Truth and Reconciliation Commission of government led to federal recognition of the inherent right
Canada (TRC), which was commissioned to document and of self-government as an existing s. 35 right. The federal
record the violent truths of Canada’s history of residential policy guide Aboriginal Self-Government—The
schools. In June 2015, the TRC presented the executive Government of Canada’s Approach to Implementation of
summary of the findings contained in its multi-volume the Inherent Right and the Negotiation of Aboriginal Self-
The Final Report of the Truth and Reconciliation Government (Inherent Right Policy) recognizes an
Commission of Canada (Final Report of the TRC), inherent right to self-government, subject to the
including 94 “Calls to Action” to further reconciliation negotiation of agreements to set out details of the
between Canadians and Indigenous peoples. Some of arrangement. Negotiated agreements under the Inherent
these Calls to Action are directed squarely at the legal Right Policy favour practical arrangements requiring that
community. self-government be exercised within the existing
constitutional framework, meaning that federal,
UNDRIP and the TRC are both discussed in more detail
provincial, and Indigenous laws must work in harmony.
below.
Today there are 25 comprehensive self-government
3. Impediments and unique challenges agreements involving a total of 43 Indigenous
3.1 Path to self-government communities. Each agreement removes affected
communities from the application of at least some Indian
Indigenous self-government is the formal structure by Act provisions, depending upon how broadly based the
which Indigenous peoples control their own land, agreement is. Federal policy requires that the agreements
resources, peoples, systems, etc. Self-government permits state that the Charter applies to all affected matters.
Indigenous peoples to take control of their own destiny, to
fulfill their desire for self-reliance, and to hold their 3.2 The legacy of residential schools
leadership accountable to their own people rather than to In the 19th century, Canada established a system of
the federal, provincial, or territorial governments. It is residential schools for Indigenous children, which was
rooted in Indigenous peoples’ desire to secure their then formally authorized by statute at the time of
distinct cultures and identities for future generations Confederation. The TRC describes these schools as
through their histories, languages, socio-political values follows:
and ideologies, and legal systems.
These residential schools were created for the purpose
Self-government is an inherent right of Indigenous of separating Aboriginal children from their families, in
people; it does not stem from external sources such as order to minimize and weaken family ties and cultural
international law, the common law, or the Constitution. linkages, and to indoctrinate children into a new
culture—the culture of the legally dominant Euro-
Article 3 of UNDRIP states, “Indigenous peoples have the Christian Canadian society. … [M]any successive
right of self-determination. By virtue of that right they

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CHAPTER 15 PROFESSIONAL RESPONSIBILITY

generations of children from the same communities and dispossession, and impoverishment of Indigenous
families endured the experience of them. peoples, special measures are required to meet the
The policy underlying the residential school system has obligations it defines.
been described as cultural genocide. Peoples’ rights in UNDRIP are expressed in universal
Residential school children lived in a world dominated by terms, and the exercise of those rights is not contingent on
fear, loneliness, and lack of affection. The TRC recounts: any other legal instrument. On the contrary, UNDRIP
implements customary international law and the existing
…these children were sent to what were, in most cases,
badly constructed, poorly maintained, overcrowded, human rights treaties and covenants that Canada has fully
unsanitary fire traps. Many children were fed a endorsed. Article 1 states:
substandard diet and given a substandard education
Indigenous people have the right to the full enjoyment,
and worked too hard. For far too long, they died in
as a collective or as individuals, of all human rights and
tragically high numbers. Discipline was harsh and
fundamental freedoms as recognized in the Charter of
unregulated; abuse was rife and unreported. It was, at
the United Nations, the Universal Declaration of
best, institutionalized child neglect.
Human Rights and international human rights law.
The existence of large numbers of unmarked graves on the
Broadly, the right of Indigenous people to say yes or no to
grounds of former residential schools is a chilling
proposals that affect them is an indispensable corollary to
reminder of the conditions to which children were
the right to self-determination in Article 3 and the many
subjected there.
other provisions affirming Indigenous decision-making
The legacy of residential schools continues today. The TRC authority in relation to Indigenous lands, society, and
explains: culture. UNDRIP recognizes “free, prior and informed
consent” requirements in four articles:
This is reflected in the significant educational, income,
health, and social disparities between Aboriginal people ƒ Article 10 (removal of peoples from their land and
and other Canadians. It is reflected in the intense racism territories);
some people harbour against Aboriginal people and in
the systemic and other forms of discrimination ƒ Article 19 (legislative and administrative measures
Aboriginal people regularly experience in this country. affecting Indigenous peoples);
It is reflected too in the critically endangered status of ƒ Article 29 (storage and disposal of hazardous
most Aboriginal languages. materials); and
In addition, the history of residential school abuses has ƒ Article 32.2 (projects affecting Indigenous lands,
had a “multi-generational impact on the physical, territories, and resources, particularly concerning
emotional, mental, and spiritual condition of Indigenous exploitation of natural resources).
peoples” (Law Society of Ontario, Report to Convocation, There is not yet an explicit consideration of “free, prior
Review Panel on Regulatory and Hearing Processes and informed consent” by the Supreme Court of Canada,
Affecting Indigenous Peoples (May 24, 2018)). Successive but one could argue the honour of the Crown presumes
generations end up suffering the same problems when that Canada intends to act in compliance with its
direct survivors are unable to address their trauma and international obligations.
survivors’ destructive behaviours are normalized within
After UNDRIP’s adoption in 2007, Indigenous peoples
the family and community (Kevin Berube, “The
collectively advocated for its full implementation in
Intergenerational Trauma of First Nations Still Runs
Canada. Call to Action #43 of the Final Report of the TRC
Deep,” The Globe & Mail (16 February 2015)).
calls upon all levels of government “to fully adopt and
In response to several thousand court cases launched by implement [UNDRIP] as the framework for
former residential school students, the Indian Residential reconciliation.”
Schools Settlement Agreement (IRSSA) came into effect
On June 21, 2021, Parliament passed the United Nations
into 2007. Among its terms was the establishment of the
Declaration on the Rights of Indigenous Peoples Act,
TRC.
which stipulates:
4. Steps towards reconciliation 5. The Government of Canada must, in consultation and
cooperation with Indigenous peoples, take all measures
4.1 United Nations Declaration on the necessary to ensure that the laws of Canada are
Rights of Indigenous Peoples (UNDRIP) consistent with the Declaration.
Seen as a human rights instrument, UNDRIP does not in 6 (1). The Minister must, in consultation and
itself create Indigenous rights; it recognizes them. It also cooperation with Indigenous peoples and with other
recognizes that in the context of colonialism and federal ministers, prepare and implement an action
plan to achieve the objectives of the Declaration.
discrimination and the resulting marginalisation,

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INDIGENOUS PEOPLES OF CANADA: HISTORY AND CURRENT LEGAL ISSUES CHAPTER 15

Going forward, this means that Indigenous rights must be The report may be found on the National Centre for Truth
implemented in ways that are consonant with universal and Reconciliation website.
human rights standards. This will require rejecting past
At present, most of the Calls to Action have not been fully
paradigms, such as the principle that Indigenous
addressed. In addition, Canada has not yet developed a
governance rights over a particular activity will only be
national action plan to implement the 231 “calls for
upheld if it can be proven that the activity is one that is
justice” of the National Inquiry into Missing and
integral to the distinctive Indigenous culture and that the
Murdered Indigenous Women and Girls.
right had been exercised prior to first contact
(R. v. Pamajewon). 4.3 Taking into account Indigenous
perspectives
4.2 The Truth and Reconciliation
Commission As discussed above, Canadian jurisprudence has
established that Aboriginal and treaty rights are pre­
The TRC was established under the IRSSA to facilitate
existing rights having a source independent of the
reconciliation among former students, their families, their
common law and the Canadian Constitution. Therefore, a
communities, and all Canadians. The TRC spent six years
full discussion and consideration of Aboriginal and treaty
travelling to all parts of Canada and heard from more than
rights must address the meaning and application of
6,500 witnesses to create a historical record of the
Indigenous perspectives and legal systems.
residential school system.
The Supreme Court of Canada has provided clear direction
In 2015, the Final Report of the TRC was released,
in that regard (Van der Peet):
detailing the violent legacy of colonization and forced
assimilation in Canada, calling for reconciliation, and Courts adjudicating aboriginal rights claims must … be
stating: sensitive to the aboriginal perspective, but they must
also be aware that aboriginal rights exist within the
[R]econciliation is about establishing and maintaining general legal system of Canada .… True reconciliation
a mutually respectful relationship between Aboriginal will, equally, place weight on each.
and non-Aboriginal peoples in this country. In order for
that to happen, there has to be awareness of the past, In this age of reconciliation, Indigenous peoples do not
acknowledgement of the harm that has been inflicted, want to see their own laws and legal traditions
atonement for the causes, and action to change extinguished through their interaction with the Canadian
behaviour. legal system. As John Burrows says in UNDRIP
The Supreme Court of Canada in Mikisew Cree First Implementation: More Reflections on the Braiding of
Nation v. Canada (Minister of Canadian Heritage) has International, Domestic and Indigenous Laws, “the
called reconciliation “the fundamental objective of the sources of law must positively react and respond to one
modern law of aboriginal and treaty rights.” another in ways that give effect to Indigenous peoples’
laws, values, customs, norms and traditions.”
The Final Report of the TRC sets out 94 Calls to Action
which address, inter alia, Indigenous child welfare, 4.4 New child welfare legislation
education, language and culture, health, and justice. They
The TRC’s Call to Action #4 demands that the government
also focus on UNDRIP, equity for Indigenous people in the
“enact Aboriginal child-welfare legislation that establishes
legal system, church apologies, and education for
national standards for Aboriginal child apprehension and
reconciliation.
custody cases.” In response, An Act respecting First
Call to Action #27 is directed at the legal community: Nations, Inuit and Métis children, youth and families
(FNIMCYF) received Royal Assent and came into force on
We call upon the Federation of Law Societies of Canada
to ensure that lawyers receive appropriate cultural January 1, 2020. The FNIMCYF affirms Indigenous
competency training, which includes the history and jurisdiction over children and families in care (s. 18(1)).
legacy of residential schools, the United Nations Where Indigenous laws concerning child and family
Declaration on the Rights of Indigenous Peoples, services conflict with federal or provincial laws, the
Treaties and Aboriginal rights, Indigenous law, and
Aboriginal-Canadian relations. This will require skills- Indigenous laws will prevail, subject only to the Canadian
based training in intercultural competency, conflict Human Rights Act, the Constitution, or the best interests
resolution, human rights and anti-racism. of the child (ss. 22-23).
All Canadians are encouraged to read the Final Report of The FNIMCYF is controversial because, while it empowers
the TRC or its summary to learn more about the terrible Indigenous jurisdiction, it does not provide for funding,
history of the residential school system and its sad legacy. oversight, a comprehensive plan for implementation, or
regulations. In addition, a significant interpretative role

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CHAPTER 15 PROFESSIONAL RESPONSIBILITY

will likely fall to non-Indigenous decision makers and the 5. Trauma-informed and anti-racist
courts, rendering the effectiveness of Indigenous approach to practice of law
jurisdiction uncertain. Effective representation of Indigenous people and
Finally, the FNIMCYF has attracted criticism because it communities requires substantive and cultural
fails to ensure that Jordan’s Principle will be upheld. competency to avoid re-victimizing clients who have had
Named after Jordan River Anderson, a young boy from negative experiences with the legal, political, and
Norway House Cree Nation in Manitoba who died at the economic systems. It is important to understand that
age of five waiting for home-based care that was approved while licensees may be (or become) comfortable with the
when he was two but never arrived because of a financial adversarial design of the Canadian legal system and the
dispute between the federal and provincial governments, notion that justice will prevail, for many Indigenous
Jordan’s Principle ensures all First Nations, Inuit, and people, this has not been their experience. Rather, their
Métis children have the services and supports they need, history and lived experiences may have, in fact, provoked
when they need them. The FNIMCYF does not include further distrust of the system.
mandatory language to ensure that Jordan’s Principle is Licensees therefore have a special obligation to contribute
observed, nor the necessary funding to put it into practice. to the reconciliation process. They should be mindful of
the possibility that a trauma-informed approach may be
4.5 New Indigenous Languages Act
appropriate when working with an Indigenous client.
As previously stated, a primary purpose of the residential
schools was the eradication of Indigenous language and According to the Government of Canada website on
culture. trauma and violence-informed approaches to policy and
practice, a trauma-informed approach to the provision of
On June 21, 2019, the Indigenous Languages Act (ILA) services entails the following:
received Royal Assent, with the overall purpose of
ƒ understanding trauma and violence, and their
supporting the efforts of Indigenous peoples to reclaim,
impacts on peoples’ lives and behaviours;
revitalize, maintain, and strengthen Indigenous
languages. The ILA responds to Calls to Action #13, #14, ƒ creating emotionally and physically safe
environments;
and #15 of the TRC and was developed with First Nations,
Inuit, and the Métis Nation to contribute to the ƒ fostering opportunities for choice, collaboration,
and connection; and
implementation of UNDRIP as it relates to Indigenous
languages. ƒ providing a strengths-based and capacity-building
approach to support client coping and resilience.
Unlike the situation with the federal child welfare
Licensees should also consider adopting an anti-racist
legislation, an initial investment of funding was promised
approach that seeks to counter the effects of systemic
to support the goals of the ILA. Some Indigenous peoples,
racism.
however, have raised concerns that the funds allocated are
not sufficient. Further, the recent release of the Two important resources that will assist licensees with
Government of Canada’s vision for official languages this are the Guide and the Guidelines for Lawyers
reform in the Official Languages Act and related Working with Indigenous Peoples, the latter of which is
instruments has drawn criticism from some Indigenous intended to assist licensees who act for Indigenous
peoples, who would have liked to have seen the ILA peoples in litigation regarding residential school matters
recognize official language status for Indigenous or the Sixties Scoop.
languages.

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