ETHICAL ISSUES IN CRIMINAL LAW

In his essay "The Ethics of Advocacy", Earl A. Cherniak, Q.C., states:

The most important attribute of an advocate is reputation for it is thatwhich wins him [or her] the respect of colleagues, the receptive ear of thecourt and, ultimately, the client. While reputation depends on manyfactors, the single most important one, without which the advocate cannotfunction, is that of fairness and honesty in dealings with the court and hisfellow lawyers.,,[ll

This paper will discuss implementing some concepts relating to select ethical issues in

criminal law into your daily practice. The emphasis of this paper will be the

implementation of practical steps to promote compliance with the following issue:

Withdrawal

The nature of the matters at stake in criminal litigation creates the potential for serious

prejudice to the client, significant inconvenience and expense for the Court, other

individuals and agencies and extremely difficult ethical issues for counsel. These issues

make withdrawal ofcounsel an often thorny area for both Courts and practitioners. It is

further complicated because our duty to our client prevents us from revealing the reasons

and the background. As a result, Courts have made efforts to expressly manage and

codify directions respecting withdrawal. Tripartite committees have been struck to

discuss the issue and gain input from Counsel representing both the Crown and the

Defence. A "one-size fits all" rule respecting withdrawal of counsel is impossible

because of the varying circumstances. Basic minimums, procedures and requirements

have been settled through practice directives. A memo from the Court of Queen's Bench

is attached that demonstrates a recent initiative to clarify procedure. (See Appendix One)

[IJ Cherniak, Earl A. Q.C., Advocacy in Court, A Tribute to Arthur Maloney, Q.C.,Canada Law Book Inc.Toronto, Ontario 1986 page 10 I

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In addition, we rely on the Law Society of Saskatchewan's Code of Professional

Conduct (the "Sask Code"), Chapter XII (see Appendix Two) and the FLSC Model

Code of Conduct (the "Model Code") section 2.07 (see Appendix Three) both of which

provide a complete canon on the subject and, of course, helpful commentaries.

The discussion on withdrawal begins like this: your client can fire you at will; but you

have a duty, once retained, to represent your client, unless there is good and justifiable

cause. This paper will attempt to discuss these important concepts and link them to the

day to day practice of Criminal Law.

There are circumstances where you must withdraw as counsel. Those circumstances are

referred to as obligatory withdrawal and include:

• Your client instructing you as counsel to act contrary to your duty to the Court or

in general; and where the client persists following explanation;

• The client wants to pursue a defence with no merit "solely" to harass or

maliciously injure another;

• Conflicts of interest; or

• You become convinced that you lack the competence to continue to act.

In those situations, "good and justifiable cause" exists. However, you must act

immediately upon recognizing these grounds. You should notify your client

immediately. Schedule a meeting as soon as possible. Prepare correspondence to

provide to your client at this meeting, outlining the reasons for withdrawal, what further

actions you will take on the client's behalf and what the client must do in order to pursue

his or her best interests. This letter will ideally include your final account and copies of

any correspondence sent to the Crown and the court. Be clear in this letter that your

solicitor client relationship is terminated and that you cannot give any more counsel or

advice.

This event will often cause the Criminal trial to be adjourned; so, in addition to acting

expeditiously following the discovery of the conflict, the lawyer should be diligent from

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the outset of each file to be aware of such a situation as it develops in the solicitor client

relationship.

The Criminal lawyer should remind him or herself regularly of these rules. My

suggestion, only halfjokingly, is to stick a checklist via yellow sticky note to your

phone. This should be placed right beside another note which reads: "Remember ­

someone else might b~ listening!"

Having said this, awareness of the problem imposes this duty to act. In criminal cases,

especially with regular and important clients, it can be difficult to deal with these

situations, and more so when dealing with the problem may require you to potentially

insult, estrange or otherwise upset a client. It may lead to bad word-of-mouth.

In these situations, remember three things:

• By acting without procrastination, you are serving the best interests of your client;

• You will avoid raised eyebrows, "harrumphs" and potentially raised tones with

Crown Counselor the Court;

• The client and the Court will both respect you as a professional for being diligent

in recognizing the problem and acting quickly to avoid prejudice, inconvenience

or unnecessary expense.

The more difficult circumstance involves situations which require judgement calls.

Discretionary withdrawals according to both the Sask Code and the Model Code include

loss ofconfidence and inability to obtain instructions. Non payment of fees is a separate

consideration.

Discretionary or optional withdrawal situations are far more frequent in criminal matters.

In these circumstances, opposing counsel should be notified immediately along with the

court Clerk or Registrar so that an application for an adjournment can be made and a new

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lawyer can prepare. For your reference, I include a sample withdrawal letter to the clerk

of the court, one of the parties who must be notified. (See Appendix four)

In the case of withdrawal on obligatory grounds or in optional situations not involving the

non-payment of fees, the Court will not require Counsel to proceed. In the case of

optional withdrawal, counsel may be called upon by the Court to justify cause to ensure

that the reas<?ns are appropriate and not simply intended to delay the proceedings. This

issue will crop up when the conflict is exposed late in the proceedings. In this case, the

Court is required to determine that the withdrawal is not intended to delay the proceeding

or otherwise adversely effect the administration ofjustice. In these situations, the duty of

confidentiality to your client will make this a general, as opposed to a specific

submission. Your continuing duty as counsel is to act so as to preserve your client's best

interests. Revealing to the Court or the Crown that your client has lied to you, or is

attempting to advise you to act contrary to you ethical obligations would not serve those

interests at all.

In the case of fees, by far most frequent situation in criminal law, it is listed in both the

Sask Code and Model Code as an optional "justification for withdrawal". The Court

may not be of the same mind that such justification exists where it is late in the

proceedings and prejudice, unwarranted delay, or expense will result. In R. v. Creaser

(1997),3 C.R. (5th) 38 Alta. (CA), the trial Judge denied an application by defence

counsel to withdraw for non payment of fees on the eve of the trial. In this circumstance,

everyone is inconvenienced and most importantly, the client is often prejudiced.

This is the most foreseeable and most avoidable conflict with a client. Ideally, you will

be paid by a funding agency such as Legal Aid or Court Services, or an Employment

Insurance fund. Also, ideally, you will be paid in full at the date of the trial. Sadly,

however, this last scenario is not usually the case. As a result, your diligence is required

in making appropriate arrangements with your client and monitoring them closely. A

sample retainer agreement is attached. (See Appendix five) A signed retainer agreement

is recommended to demonstrate "good cause" should that be required.

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As said, you should count on being required to proceed in situations where material

inconvenience and expense are caused to the Crown or the Court or, more importantly, if

"prejudice" will be caused to your client. In these circumstances query whether it is

appropriate to withdraw under those circumstances. The solution involves: establishing

realistic targets and specific dates for delivery with the client; diarizing your file to

mo~itor these dates and targets; and finally, as soon as you sense a problem assessing the

potential for inconvenience, expense and prejudice and, as a result, what, in all of the

circumstances, constitutes reasonable notice.

If you have made reasonable requests of your client and provided reasonable notice to the

Court, you will get leave to withdraw. Ifnot, feel good in your heart that by failing to

perform these tasks regularly, it is you who are making the decision to dedicate a

significant portion of your practice to pro bono work. The recent memo from the Court

of Queen's Bench outlines that notice in that Court shall be a minimum of 60 days and by

way of Notice ofMotion. To deal with the issue or privilege which exists between

solicitor and client, the Court requires an affidavit stating that the withdrawal is not due

to non payment of fees.

In the case ofnon-payment, the memo reads that "the Lawyer may not be allowed to

withdraw". This requirement is nothing more than a codification of the longstanding

rules relating to withdrawal for non-payment, but does indicate, due to the difficult nature

of payment in these cases and the frequency of the problem, that a uniform practice needs

to be established and that we need to be diligent and act decisively placing our ethical

duties first and foremost in order to be part of the solution.

Relations with Jurors

The Model Code states as follows:

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4.05 RELATIONS WITH JURORS

Communications before Trial4.05 (1) When acting as an advocate, before the trial of a case, a lawyershall not communicate with or cause another to communicate with anyonethat the lawyer knows to be a member of the jury panel for that trial.

CommentaryA lawyer may investigate a prospective juror to ascertain any basis forchallenge, provided that the lawyer does not directly or indirectlycommunicate with the prospective juror or with any member of theprospective juror's family. But a lawyer should not conduct or causeanother, by financial support or otherwise, to conduct a vexatious orharassing investigation of either a member of the jury panel or a juror.

Disclosure of Information

4.05 (2) When acting as an advocate, a lawyer shall disclose to the judgeand opposing counsel any information of which the lawyer is aware that ajuror or prospective juror:(a) has or may have an interest, direct or indirect, in the outcome of thecase;(b) is acquainted with or connected in any manner with the presidingjudge, any counsel or any litigant; or(c) is acquainted with or connected in any manner with any person whohas appeared or who is expected to appear as a witness unless the judgeand opposing counsel have previously been made aware of theinformation.

4.05 (3) A lawyer should promptly disclose to the court any informationthat the lawyer has about improper conduct by a member of a jury panel orby a juror toward another member of the jury panel, another juror, or to themembers of a juror's family.

Communication During Trial

4.05 (4) Except as permitted by law, when acting as an advocate, a lawyershall not during a trial of a case communicate with or cause another tocommunicate with any member of the jury.

.>

4.05 (5) A lawyer who is not connected with a case before the court shallnot communicate with or cause another to communicate with any memberof the jury about the case.

4.05 (6) A lawyer must not have any discussion with a member of the juryabout its deliberations after trial.

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Counsel is aware that a jury is charged with the duty of determining the fate in a

proceeding. They are "the Judge" and as such, proper deference, respect and

appropriateness are required. Jurors, unlike Judges, are lay people and have only a base

understanding of what mayor may not be appropriate in the context of a trial. So, unlike

a Judge, no contact, not even a "hello" is recommended. By respecting this boundary,

counsel is not only ensuring that justice will be done but will also be seen to be done.

The bigger issue may relate to the investigation of potentials jurors. Lawyers will

generally employ investigators to do such work. A lot of helpful information can be

gathered without invasive steps like questioning neighbours and performing surveillance.

I'm sure this kind of inquiry happens, but I am not aware of this practice locally. When

employing an agency to perform such inquiries will require you to thoroughly "paper"

your file, demonstrating through these notations that all care was taken and clear

instructions were given to avoid inappropriate or potentially obstructive contact with

potential jurors.

The safest approach is to stick to the Henderson Directory.

Preservation of Client's Property

Both the Sask Code and the Model Code provide a definition of "property" and outline

requirements of Counsel. These are set out in the respective appendices at the end of the

paper.

As the commentaries for both Codes address, the Lawyer is under no obligation to

receive property from the client. In the Criminal context, the most common form of

property received or held by counsel is in the form of cash deposits in trust for fees.

In relation to receipt ofcash, there are certain rule requirements from the Law Society of

Saskatchewan. Rule 909 sets out the duties of the lawyer and is printed here in its'

entirety:

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C. Receipt of Trust FundsCash Transactions

909. (1) A member shall not receive or accept from a person, cashin an aggregate amount of $7,500 or more Canadian dollars in respect ofanyone client matter or transaction.

(2) For the purposes of this Rule, when a member receives or accepts cashin a foreign currency from a person the member shall be deemed to havereceived or accepted the cash converted into Canadian dollars at:(a) the official conversion rate ofthe Bank of Canada for the foreigncurrency as published in the Bank of Canada's Daily Noon Rates that is ineffect at the time the member receives or accepts the cash, or(b) if the day on which the member receives or accepts cash is a holiday,the official conversion rate of the Bank of Canada in effect on the mostrecent business day preceding the day on which the member receives oraccepts the cash.(3) Paragraph 1 applies when a member engages on behalf of a client orgives instructions on behalf of a client in respect ofthe followingactivities:(a) receiving or paying funds;(b) purchasing or selling securities, real properties or business assets orentities;(c) transferring funds by any means.(4) Despite paragraph 3, paragraph 1 does not apply when the memberreceives cash(a) from a financial institution or public body;(b) from a peace officer, law enforcement agency or other agent of theCrown acting in his or her official capacity;(c) pursuant to a court order, or to pay a fine or penalty, or(d) in an amount of $7,500 or more for professional fees, disbursements,expenses or bail, provided that any refund out of such receipts is also madein cash.(5) Every member, in addition to existing financial recordkeepingrequirements to record all money and other property received anddisbursed in connection with the member's practice, shall maintain:(a) a book of original entry identifying the method by which money isreceived in trust for a client, and(b) a book of original entry showing the method by which money, otherthan money received in trust for a client, is received.(6) Every member who receives cash for a client shall maintain, in additionto existing financial recordkeeping requirements, a book of duplicatereceipts, with each receipt identifying the date on which cash is received,the person from whom cash is received, the amount of cash received, theclien~ for whom cash is received, any file number in respect of which cash

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is received and containing the signature authorized by the member whoreceives cash and of the person from whom cash is received.(7) The financial records described in paragraphs 1 and 2 may be enteredand posted by hand or by mechanical or electronic means, but if therecords are entered and posted by hand, they shall be entered and posted inink.(8) The financial records described in paragraphs 1 and 2 shall be enteredand posted so as to be current at all times.(9) A member shall keep the financial records described in paragraphs 1and 2 for at least the six year period immediately preceding the member'smost recent fiscal year end.

[Rule 909 amended June 2005]

As well, to avoid receiving questionable monies, you need to make appropriate inquiries

to satisfy any concerns in this regard. This is primarily true in drug cases and cases

where organized crime affiliation is suspected. Make such inquiries as are necessary to

satisfy your concerns and have the client bring you a bank draft wherever possible, and

make this the rule in the case of larger amounts of money.

The concern raised by s. 205(6) of the Model Code (Le., uncertainty as to the appropriate

party to receive returned property) would relate primarily to chattels or real property

. taken as security for fees, and in some cases, bail proceeds. My recommendation is to

make it your practice to deal with this type of property only if you are surrounded by

colleagues in a firm who are competent to deal with matters respecting property law. In

relation to bail assignments, make it your practice early on to clarify the conditions

precedent for ownership of the funds at the conclusion of your case.

It's nice to simply close and bill your file. Any after-steps, particularly onerous, non­

paying Court applications are akin to devastating body checks in hockey. They take a lot

out of you and diminish your effectiveness on other files.

In the result, getting back to the point about it being your choice to receive property or

not, I rely on a comment made by Mort Gerberg in his seminal work on cartooning, "Ih£Art of Cartooning", where he states: "when in doubt, leave it out". In law, as in

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cartooning, this simple rule can do away with your need to perform unnecessary and

stressful work.

Court House Security

The Model Code states:

Security of Court Facilities

4.06 (3) A lawyer who has reasonable grounds for believing that adangerous situation is likely to develop at a court facility shall inform thelocal police force and give particulars.

Commentary

Where possible, the lawyer should suggest solutions to the anticipatedproblem such as:

(a) the necessity for further security,and

(b) that judgment ought to be reserved.

Where possible, the lawyer should also notify other lawyers who areknown to be involved in proceedings at the court facility where thedangerous situation is likely to develop. Beyond providing a warning ofdanger, this notice is desirable because it may allow them to suggestsecurity measures that do not interfere with an accused's or a party's rightto a fair trial. If client information is involved in those situations, thelawyer should be guided by the provisions of Rule 2.03 (Confidentiality).

Court house security is perceived as a growing concern as the perceived proliferation of

daring "gangland" threats grows. Security staff at courthouses have received specific

training in this regard and work with the police to solve issues effectively and often

without taking adversely effecting the Accused. In most situations, alerting the Crown

and the Clerk or Registrar will set these wheels in motion. I think it would be an extreme

circumstance that would involve the lawyer contacting the police and a rare one that

didn't result in your client being prejudiced in some way.

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Where you receive threatening information directly from your client, do everything in

your power to preserve your clients right to confidentiality, but take these matters

seriously, because the safety of the individuals working in the system is clearly

paramount.

Agreement on Guilty Pleas

As with most matters, in the practice of Criminal law, sentencing discussions often

happen at the last minute. It is the nature of the beast in criminal law. Witnesses don't

show up, don't cooperate or come across, or witnesses do show up, cooerate and come

across.

In all cases where resolution seems likely, unavoidable or desirable, steps to determine

what the Crown is seeking are essential to your client's understanding of his matter and

the risks.

As a result, make this your standard practice and act diligently from the outset ofyour

retainer to make this part of the "investigation" of your file. The Model Code sets out

the following:

Agreement on Guilty Plea4.01 (8) Before a charge is laid or at any time after a charge is laid, alawyer for an accused or potential accused may discuss with the prosecutorthe possible disposition of the case, unless the client instructs otherwise.4.01 (9) Where, following investigation,(a) a lawyer for an accused or potential accused advises his or her clientabout theprospects for an acquittal or finding of guilt;(b) the lawyer advises the client of the implications and possibleconsequences of a guilty plea and particularly of the sentencing authorityand discretion of the court, including the fact that the court is not bound byany agreement about a guilty plea;(c) the client voluntarily is prepared to admit the necessary factual andmental elements of the offence charged; and

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(d) the client voluntarily instructs the lawyer to enter into an agreement asto a guilty plea, the lawyer may enter into an agreement with theprosecutor about a guilty plea.

CommentaryThe public interest in the proper administration of justice should not besacrificed in the interest of expediency.

In order to perform an "investigation" or to "advise" your client properly, you must have,

of course, obtained all of the disclosure; made any witness inquiries and quantified your

client's liability. The tendency of most Criminal Practitioners is to procrastinate a little

bit at each stage. The sooner these steps can be taken, the more efficient your practice

(and particularly your billing practice) will be. It also greatly benefits your client to

understand his or her jeopardy at the earliest possible stage.

If your client's desire is to attempt a resolution, and discussion with the Crown is

instructed, this first thing to decide is the factual basis upon which matters will be

resolved. Facts in criminal cases are critical, so be very thorough in establishing what

your client is admitting. This is the first step. Without a clear resolution of the facts, your

client may be prejudiced at the time of sentencing, or an adjournment may be required in

order to conduct a sentencing hearing, get a restitution calculation or resolve an issue that

could have and should have been dealt with long in advance.

Ensure as well that you understand what the Crown intends to submit in relation to prior

convictions, what corollary relief is sought (i.e. firearms prohibitions, DNA samples, no

contact conditions) and, what is going to be submitted by way of Victim Impact

Statements. These steps should result in the clarification of everyone's true intent and

will provide vital information to your client so that he or she can make a voluntary

decision in the absence of unwarranted pressure or duress.

In this regard, it is incumbent on the Lawyer to ensure that the client understand each

nuance of both the benefit and the jeopardy he or she faces from pursuing an acquittal or

the potential outcomes flowing from abandoning his or her right to full answer and

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defence. We must remain prepared to act on the client's instructions, as long as acting on

those instructions does not put us in conflict with other rules or obligations.

In some cases, where a client wants to pursue a defence which you have advised against

to pursue a goal which is either harmful to your client or intended to "harass" or

"maliciously injure" another (an ex-spouse or an arresting officer), you may withdraw.

In extreme cases, such as these, a refusal to accept an arrangement can demonstrate, a lack

of confidence in your advice and place counsel in a position which is ethically untenable.

In these cases, please refer back to the first section on "Withdrawal".

Threatening withdrawal to pressure a client is not an acceptable practice. Informing a

client that your withdrawal may be required may be appropriate in the clearest of cases.

In those situations, you should steps to ensure that the client understands your reasons

and that this will not result in the client being deprived of counsel entirely.

One....

HER MAJESTY'SCOURT OF QUEEN'S BENCH

PROVINCE OF SASKATCHEWAN

NOTICE TO THE PROFESSION

Re: Consent Adjournments for Trials Scheduled for More than Five Days

Consent adjournments for trials which are scheduled for more than five days will no longerbe accepted by our Local Registrars. Any such adjournments shall be requested by notice of motion andsupported by an affidavit indicating why the adjournment is required. Such motions shall be brought inregular Chambers except for requests to adjourn criminal trials in Saskatoon and Regina where the motionmay be brought before the regularly scheduled criminal pre-trial judge. The reason for the change in policyofthe Court is there are simply too many consent adjournments oftrials which have been scheduled for morethan five days which leaves us with vacant courtrooms, particularlyin the smaller centres where there is onlyone courtroom, and causes other scheduling difficulties. The change in policy does not mean that anadjourrunent will not be allowed, but a good reason, other than convenience of counsel, will have to beoffered. .

Re:Withdrawal by Criminal Defence Lawyers from Acting for an Accused Person

Criminal defence lawyers seeking to Withdraw from acting for an accused client shortlybefore a trial is scheduled to commence is also creating problems for the Court's schedule. In many casessuch late withdrawals are due to the lawyer not having been paid his or her fee. The historical ethical rulefor lawyers has been that. a lawyer may only withdraw from acting for a client for non-payment of fees ifthere remains ample time prior to the trial date for the accused person to retain another counsel to act. OurCourt has decided 60 days prior to the trial date is the minimum time in which this may occur. The Courtadopts the following policy:

Within 60 days of a trial date, defence counsel seeking to withdraw mustapply by notice ofmotion supported by an affidavit that states the withdrawalis not due to the client's non-payment of fees. No other reason for thewithdrawal is required. If the application for withdrawal is due to non­payment of fees, the lawyer may not be allowed to withdraw.

The foregoing policy is not considered onerous on defence lawyers who will now be in aposition to advance the date for payment with their clients, and will assist the court in reducing the numberof criminal trials that must be adjourned.

May 7, 2008 Robert D. Lamg,Chief Justice.

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Code ofProfessional Conduct

CHAPTER VIII

PRESERVATION OF CLIENTS' PROPERTY

RULE

The lawyer owes a duty to the client to observe all relevant laws and rules respectingthe preservation and safekeeping of the client's property entrusted to the lawyer. Where thereare no such laws or rules, or the lawyer is in any doubt, the lawyer should take the same careof such property as a careful and prudent owner would when dealing with property of likedescription. l

Commentary

Guiding Principles

1. The lawyer's duties with respect to safekeeping, preserving and accounting for theclients' monies and other property are generally the subject of special rules.2 Ih the absenceof such rules the lawyer should adhere to the minimum standards set out in the note.3

"Property", apart from clients' monies, includes securities such as mortgages, negotiableinstruments, stocks, bonds, etc., original documents such as wills, title deeds, minute books,licences, certificates, etc., other papers such as clients' correspondence files, reports, invoices,etc., as well as chattels such as jewelry, silver, etc.4

2. The lawyer should promptly notify the client upon receiving any property of orrelating to the client unless satisfied that the client knows that it has come into the lawyer'scustody.5

3. The lawyer should clearly label and identify the client's property and place it insafekeeping separate and apart from the lawyer's own property.

4. The lawyer should maintain adequate records of clients' property in the lawyer'scustody sothat it may be promptly accounted for, or delivered to, or to the order of, the clientupon request. The lawyer should ensure that such property is delivered to the right personand, in case of dispute as to the person entitled, may have recourse to the courts.6

5. The duties here expressed are closely related to those concerning confidentialinformation.7 The lawyer should keep clients' papers and other property out of sight as weIlas out of reach of those not entitled to see them and should, subject to any

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Code ofProfessional Conduct

right of lien,8 return them promptly to the clients upon request or at the conclusion of thelawyer's retainer.

Privilege

6. The lawyer should be alert to claim on behalf of clients any lawful privilegerespecting information about their affairs, including their files and property if seized orattempted to be seized by a third party. In this regard the lawyer should be familiar with thenature of clients' privilege, and with relevant statutory provisions such as those in the IncomeTax Act,9 the Criminal Code, the Canadian Charter of Rights and Freedoms and otherstatutes.

NOTES

1. Cf. CBA-COD 7; CBA 3(8); Que. 3.02.06; ABA-MR 1.15; ABA DR 9-102(B). Althoughthe basic duty here declared may parallel the legal duty under the law of bailment, it isreiterated as being a matter of professional responsibility quite apart from the position in law.

2. See Part 13 ofThe Rules ofThe Law Society of Saskatchewan.

[Chapter VIII Footnote 2Ammdcdlx~b.:rII.I992]

3. The minimum standards are:(a) paying into and keeping monies received or held by the lawyer for or on

behalf of clients in a trust bank account or accounts separate from the bankaccount of the lawyer or the lawyer's firm;

(b) keeping properly written books and accounts of all monies received, held orpaid by the lawyer for or on behalf of each of the lawyer's clients whichclearly distinguish such monies from the monies of every other client andfrom the monies of the lawyer and the lawyer's firm;

(c) not retaining for an unnecessarily long period, without the express authorityof the client, monies received for or on behalf of such client:

(d) subject to rules prescribed by the governing body of the province, no lawyershall take fees, as opposed to disbursements, from funds held in trust for aclient without the client's express authority unless the work being done by thelawyer for the client has been performed and a proper account in respectthereof has been rendered to the client. Where a client authorizes thepayment of fees from trust funds before an account has been rendered, thisarrangement should be recorded in writing and an interim account sent to theclient forthwith;

(e) the lawyer should not estimate a lump sum that may in the aggregate be owedby a number of clients and then transfer that sum in bulk from a trust accountto the lawyer's general account without allocating specific amounts to eachclient and rendering an account to each client.

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Code ofProfessional Conduct

4. In some provinces statutes authorize the depositing· of valuable documents with publicofficials for safekeeping. As to wills, see Comment in (1970) 4 Law Soc. U.c. Gaz. I 17.

5. Cf. ABA DR 9-102 (B)(I).

6. For example, by seeking leave to interplead.

7. Cf. the Rule relating to confidential information.

8. Cf. para. 10 of the Rule relating to withdrawal. As to the proper disposition of papers, whichis frequently a perplexing problem, see Cordery on Solicitors (6th ed. 1968) at pp. I 18-20 fora discussion of law and principles and a table of categories with supporting authorities.The lawyer's arrangements and procedures for the storage and eventual destruction ofcompleted files should reflect the foregoing considerations and particularly the continuingobligation as to confidentiality.Further, statutes such as the Income Tax Act and the operation of limitations statutes pertinentto the client's position may preclude the destruction of files or particular papers. Section 61of The Legal Proftssion Act, 1990, provides for the appointment of a trustee of the propertyof a member pertaining to the practice of the member where the member has died, absconded,has neglected the practice or is unable to practice. The trustee is to respect a solicitor's lien(Section 62).

[Chapler VlII Footnote 8 Amended December II. 1992J

9. See Freedman, "Solicitor-Client Privilege under the Income Tax Act" (I969) 12 Can. BJ. 93.

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Code ofProfessional Conduct

CHAPTER IX

THE LAWYER AS ADVOCATE

RULE

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

Commentary

Guiding Principles

I. The advocate's duty to the client "fearlessly to raise every issue, advance everyargument, and ask every question, however distasteful, which he thinks will help his client'scase" and to endeavour "to obtain for his client the benefit of any and every remedy anddefence which is authorized by law,,2 must always be discharged by fair and honourablemeans, without illegality and in a manner consistent with the lawyer's duty to treat the courtwith candour, fairness, courtesy and respect.3

[Chapter IX Commentary I Amended December II, 1992]

Prohibited Conduct

2. The lawyer must not, for example:(a) abuse the process of the tribunal by instituting or prosecuting proceedings

that, although legal in themselves, are clearly motivated by malice on the partof the client and are brought solely for the purpose of injuring another party;4

(b) knowingly assist or permit the client to do anything that the lawyer considersto be dishonest or dishonourable;5

(c) appear before a judicial officer when the lawyer, the lawyer's associates or theclient have business or personal relationships with such officer that give riseto real or apparent pressure, influence or inducement affecting the impartialityof such officer;6

(d) attempt or allow anyone else to attempt, directly or indirectly, to influence thedecision or actions of a tribunal or any of its officials by any means exceptopen persuasion as an advocate;7

(e) knowingly attempt to deceive or participate in the deception of a tribunal orinfluence the course of justice by offering false evidence, misstating facts orlaw, presenting or relying upon a false or deceptive

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Code ofProfessional Conduct

(t)

(g)

(h)

(i)

G)

(k)(1)

affidavit, suppressing what ought to be disclosed or otherwise assisting in anyfraud, crime or illegal conduct;8.knowingly misstate the contents of a document, the testimony of a witness,the substance of an argument or the provisions of a statute or like authority;9knowingly assert something for which there is no reasonable basis inevidence, or the admissibility of which must first be established;lodeliberately refrain from informing the tribunal of any pertinent adverseauthority that the lawyer considers to be directly in point and that has notbeen mentioned by an opponent; 11

dissuade a. material witness from giving evidence, or advise such a witness tobe absent; 12 .

knowingly permit a witness to be presented in a false or misleading way or toimpersonate another;needlessly abuse, hector or harass a witness;needlessly inconvenience a witness.

Errors and Omissions

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

Duty to Withdraw

4. If the client wishes to adopt a course that would involve a breach of this Rule, thelawyer must refuse and do everything reasonably possible to prevent it. If the client persistsin such a course the lawyer should, subject to the Rule relating to withdrawal, withdraw orseek leave of the court to do SO.14

The Lawyer as Witness

5. The lawyer who appears as an advocate should not submit the lawyer's ownaffidavit to or testifY before a tribunal save as permitted by local rule or practice, or as topurely formal or uncontroverted matters. This also applies to the lawyer's partners andassociates; generally speaking, they should not testifY in such proceedings except as tomerely formal matters. The lawyer should not express personal opinions or beliefs, or assertas fact anything that is properly subject to legal proof, cross-examination or challenge. Thelawyer must not in effect become an unsworn witness or put the lawyer's own credibility inissue. The lawyer who is a necessary witness should testifY and entrust the conduct of thecase to someone else. Similarly, the lawyer who was a witness in the proceedings should notappear as advocate in any

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Code ofProfessional Conduct

appeal from the decision in those proceedings. IS There are no restrictions upon theadvocate's right to cross-examine another lawyer, and the lawyer who does appear as awitness should not expect to receive special treatment by reason of professional status.

Interviewing Witnesses

6. The lawyer may properly seek information from any potential witness (whether undersubpoena or not) but should disclose the lawyer's interest and take care not to subvert orsuppress any evidence or procure the witness to stay out of the way.16 The lawyer shall notapproach or de.al with an opposite party who is professionally represented save through orwith the consent of that party's lawyer. 17

[Chapter IX, Commentary 6, amended March 27, 1992]

Unmeritorious Proceedings

7. The lawyer should never waive or abandon the client's legal rights (for example anavailable defence under a statute of limitations) without the client's informed consent. Incivil matters it is desirable that the lawyer should avoid and discourage the client fromresorting to frivolous or vexatious objections or attempts to gain advantage from slips oroversights not going to the real merits, or tactics that will merely delay or harass the otherside. Such practices can readily bring the administration of justice and the legal professioninto disrepute. 18

Encouraging Settlements

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

Duties of Prosecutor

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

Duties of Defence Counsel

10. When defending an accused person, the lawyer's duty is to protect the client as far aspossible from being convicted except by a court of competent

33

Code ofProfessional Conduct

jurisdiction and upon legal evidence sufficient to support a conviction for the offencecharged. Accordingly, and notwithstanding the lawyer's private opinion as tocredibility or merits, the lawyer may properly rely upon all available evidence ordefences including so-called technicalities not known to be false or fraudulent.22

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

Agreement on Guilty Plea

12. Where, following investigation,(a) the defence lawyer bonafide concludes and advises the accused client that an

acquittal of the offence charged is uncertain or unlikely,(b) the client is prepared to admit the necessary factual and mental elements,(c) the lawyer fully advises the client of the implications and possible

consequences of a guilty plea and that the matter of sentence is solely in thediscretion of the trial judge, and

(d) the client so instructs the lawyer, preferably in writing, it is proper for thelawyer to discuss and agree tentatively with the prosecutor to enter a plea ofguilty on behalf of the client to the offence charged or to a lesser or includedoffence or to another offence appropriate to the admissions, and also on adisposition or sentence to be proposed to the court. The public interest andthe client's interests must not, however, be compromised by agreeing to aguilty plea.24

Undertakings

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

34

Code ofProfessional Conduct

Courtesy

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

Role in Adversary Proceedings

15. In adversary proceedings, the lawyer's function as advocate is openly and necessarilypartisan. Accordingly, the lawyer is not obliged (save as required by law or underparagraphs 2(h) or 7 above) to assist an adversary or advance matters derog&tory to theclient's case. When opposing interests are not represented, for example in ex parte oruncontested matters, or in other situations where the full proof and argument inherent in theadversary system cannot be obtained, the lawyer must take particular care to be accurate,candid and comprehensive in presenting the client's case so as to ensure that the court is notmisled.27

Communicating with Witnesses16. The lawyer should observe the following guidelines respecting communication withwitnesses giving evidence:

(a) During the examination-in-chief it is not improper for the exammmg lawyer todiscuss with the witness any matter that has not been covered in the examination upto that point;

(b) During examination-in-chief by another lawyer of a witness who is unsympathetic tothe lawyer's cause the lawyer not conducting the examination-in-chief may properlydiscuss the evidence with the witness;

(c) Between completion of examination-in-chief and commencement of cross­examination of the lawyer's own witness there ought to be no discussion of theevidence given in chief or relating to any matter introduced or touched upon durirgthe examination-in-chief;

(d) During cross-examination by an opposing lawyer the lawyer ought not to have anyconversation with the witness respecting the witness' evidence or relative to any issuein the proceeding;

(e) Between completion of cross-examination and commencement of re-examination thelawyer who is going to re-examine the witness ought not to have any discussionrespecting evidence that will be dealt with on re-examination;

(f) During cross-examination by the lawyer of a witness unsympathetic to the cross­examiner's cause the lawyer may properly discuss the witness' evidence with thewitness;

",nre.e

2.05 PRESERVATION OF CLIENT'S PROPERTY

Preservation of Client's Property

In this rule, "property" includes a client's money, securities as defined in [provincial legislation], originaldocuments such as wills, title deeds, minute books, licenses, certificates, and the like and all other paperssuch as client's correspondence, files, reports, invoices and other such documents as well as personalproperty including precious and semi-precious metals, jewellery and the like.

2.05 (l) A lawyer shall

(a) preserve and keep confidential property ofa client under the lawyer's control,

(b) observe all relevant rules and law about the preservation of a client's property entrusted to a lawyer, and

(c) care for a client's property as a careful and prudent owner would when dealing with like property.

Commentary

The duties concerning safekeeping, preserving, and accounting for clients' monies and other property areset out in the [rules/regulationslby-Iaws of the relevant Law Society]. These duties are closely related tothose regarding confidential information. A lawyer is responsible for maintaining the safety andconfidentiality of the files of the client in the possession of the lawyer and should take all reasonable stepsto ensure the privacy and safekeeping of a client's confidential information. The lawyer should keep theclient's papers and other property out of sight as well as out of reach of those not entitled to see them.Subject to any rights of lien, the lawyer should promptly return them to the client upon request or at the

conclusion of the lawyer's retainer. Where the lawyer withdraws from representing a client, the lawyer isrequired to comply with Rule 2.07 (Withdrawal from Representation).

Notification of Receipt of Property

2.05 (2) A lawyer shall promptly notify the client of the receipt ofany money or other property of theclient; unless satisfied that the client is aware that they have come into the lawyer's custody.

Identifying Client's Property

2.05 (3) A lawyer shall clearly label and identify the client's property and place it in safekeepingdistinguishable from the lawyer's own property.

2.05 (4) A lawyer shall maintain such records as necessary to identify a client's property that is in thelawyer's custody.

Accounting and Delivery

2.05 (5) A lawyer shall account promptly for a client's property that is in the lawyer's custody and uponrequest shall deliver it to the order of the client, or where appropriate, at the conclusion of the retainer.

2.05 (6) Where a lawyer is unsure of the proper person to receive a client's property, the lawyer shall applyto a tribunal of competent jurisdiction for direction.

Commentary

The lawyer should be alert to the duty to claim on behalfof a client any privilege in respect of propertyseized or attempted to be seized by an external authority or in respect of third party claims made against theproperty. In this regard, the lawyer should be familiar with the nature of the client's common law privilegeand with such relevant constitutional and statutory provisions as those found in the Income Tax Act(Canada), the Charter, and the Criminal Code. A lawyer is never required to take or keep possession ofproperty relevant to a crime or offence. Ifa lawyer comes into possession of such property, either from aclient or another person, the lawyer must do so in keeping with the lawyer's duty of loyalty andconfidentiality to his or her client and the lawyer's duty to the administration ofjustice, which requires, at aminimum, that the lawyer not violate the law, improperly impede a police investigation, or otherwiseobstruct the course ofjustice. Generally, a lawyer in such circumstances should, as soon as reasonablypossible:

(a) Tum over the property to the prosecution, either directly or anonymously;

(b) Deposit the property with the trial judge in the proceeding;

(c) Deposit the property with the court to facilitate access by the prosecution or defence for testing orexamination; or

(d) Disclose the existence of the property to the prosecution and, if necessary, prepare to argue the issue ofretaining the property.

When a lawyer discloses or delivers property relevant to a crime or offence to the Crown or lawenforcement authorities, the lawyer has a duty to protect the client's confidences, including the client'sidentity, and to preserve solicitor and client privilege. This may be accomplished by the lawyer retainingindependent counsel (who is not informed of the identity of the client and who is instructed not to disclose·the identity of the instructing lawyer), to disclose or deliver the property. Where a lawyer delivers theproperty to the court under paragraph (c), he or she should do so in accordance with the protocolestablished for such purposes, which permits the lawyer to deliver the property to the court without formalapplication or investigation, ensures that the property is available to both the Crown and defence counselfor testing and examination upon motion to the court, and ensures that the fact that property was receivedfrom the defence counsel will not be the subject of comment or argument at trial.

2.07 WITHDRAWAL FROM REPRESENTATION

Withdrawal from Representation

2.07 (l) A lawyer shall not withdraw from representation of a client except for good cause and uponreasonable notice to the client.

Commentary

Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does notenjoy the same freedom of action. Having undertaken the representation ofa client, the lawyer shouldcomplete the task as ably as possible unless there is justifiable cause for terminating th~ relationship. It isinappropriate for a lawyer to withdraw on capricious or arbitrary grounds. An essential element ofreasonable notice is notification to the client, unless the client cannot be located after reasonable efforts.The court, opposing parties or others should also be notified of the withdrawal. No hard and fast rules canbe laid down as to what will constitute reasonable notice before withdrawal and how quickly a lawyer maycease acting after notification will depend on all relevant circumstances. Where the matter is covered by

statutory provisions or rules of court, these will govern. In other situations, the governing principle is thatthe lawyer should

protect the client's interests to the best of the lawyer's ability and should not desert the client at a criticalstage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.As a general rule, the client should be given sufficient time to retain and instruct replacement counsel. Norshould withdrawal or an intention to withdraw be permitted to waste court time or prevent other counselfrom reallocating time or resources scheduled for the matter in question. See subrule 2.07 (8) - Manner ofWithdrawal.

In the case of the lawyer's advance notice of an intention to withdraw, every effort should be made toensure that withdrawal will occur at an appropriate time in the proceedings in keeping with the lawyer'sobligations. When a law firm is dissolved it will usually result in the termination of the lawyer-clientrelationship as between a particular client and one or more ofthe lawyers involved. In such cases, mostclients will prefer to retain the services of the lawyer whom they regarded as being in charge of theirbusiness before the dissolution. However, the final decision rests with the client, and the lawyers who areno longer retained by that client should act in accordance with the principles set out in this rule, and, inparticular, should try to minimize expense and avoid prejudice to the client.

Optional Withdrawal

2.07 (2) Where there has been a serious loss of confidence between the lawyer and the client, the lawyermay withdraw.

Identified issue: Law Society shall list its publication or guidelines with respect to the duty of the lawyerwhen a firm dissolves.

Commentary

A lawyer may have ajustifiable cause for withdrawal in circumstances indicating a loss of confidence, forexample, where a lawyer is deceived by his client, the client refuses to accept and act upon the lawyer'sadvice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, orthe lawyer is facing difficulty in obtaining adequate instructions from the client. However, the lawyershould not use the threat of withdrawal as a device to force a hasty decision by the client on a difficultquestion.

Non-payment of Fees

2.07 (3) Where, after reasonable notice, the client fails to provide a retainer or funds on account ofdisbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result.

Commentary

When the lawyer withdraws because the client has not paid the lawyer's fee, the lawyer should ensure thereis sufficient time for the client to obtain the services ofanother lawyer and for that other lawyer to prepareadequately for trial.

Withdrawal from Criminal Proceedings

2.07 (4) Where a lawyer has agreed to act in a criminal case and where the interval between a withdrawaland the trial of the case is sufficient to enable the client to obtain another lawyer and to allow such otherlawyer adequate time for preparation, the lawyer who has agreed to act may withdraw because the clienthas not paid the agreed fee or for other adequate cause provided that the lawyer:

(a) notifies the client, in writing, that the lawyer is withdrawing because the fees have not been paid or forother adequate cause;

(b) accounts to the client for any monies received on account of fees and disbursements;

(c) notifies Crown counsel in writing that the lawyer is no longer acting;

(d) in a case when the lawyer's name appears on the records of the court as acting for the accused notifiesthe clerk or registrar of the appropriate court in writing that the lawyer is no longer acting;

(e) comply with the applicable rules of court.

Commentary

A lawyer who has withdrawn because of conflict with the client should not indicate in the notice addressedto the court or Crown counsel the cause of the conflict or make reference to any matter that would violatethe privilege that exists between lawyer and client. The notice should merely state that the lawyer is nolonger acting and has withdrawn.

2.07 (5) Where a lawyer has agreed to act in a criminal case and where the date set for trial is not such asto enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial andan adjournment of the trial date cannot be obtained without adversely affecting the client's interests, thelawyer who agreed to act shall not withdraw because of nonpayment of fees.

2.07 (6) Where the lawyer is justified in withdrawing from a criminal case for reasons other than non­payment of fees and there is not a sufficient interval between a notice to the client of the lawyer's intentionto withdraw and the date when the case is to be tried to enable the client to obtain another lawyer and toenable such lawyer to prepare adequately for trial, the first lawyer, unless instructed otherwise by the client,should attempt to have the trial date adjourned and may withdraw from the case only with the permission ofthe court before which the case is to be tried.

Commentary

Where circumstances arise that in the opinion ofthe lawyer require an application to the court for leave towithdraw, the lawyer should promptly inform Crown counsel and the court of the intention to apply forleave in order to avoid or minimize any inconvenience to the court and witnesses.

Obligatory Withdrawal

2.07 (7) A lawyer shall withdraw if:

(a) discharged by the client;

(b) the lawyer is instructed by the client to do something inconsistent with the lawyer's duty to the tribunaland, following explanation, the client persists in such instructions;

(c) the client is guilty of dishonourable conduct in the proceedings, insists that the lawyer continue a futileor vexatious proceeding, or is taking a position solely to harass or maliciously injure another, or when thelawyer is instructed by the client to perform illegal, unfair, immoral or fraudulent acts;

(d) it becomes clear that the lawyer's continued engagement will lead to a breach of these rules,

(e) the lawyer is not competent to continue to handle the matter.

Manner of Withdrawal

2.07 (8) When a lawyer withdraws, the lawyer shall try to minimize expense and avoid prejudice to theclient and shall do all that can reasonably be done to facilitate the orderly transfer of the matter to thesuccessor lawyer.

2.07 (9) Upon discharge or withdrawal, a lawyer shall:

(a) notify the client in writing, stating:

i. the fact that the lawyer has withdrawn,

ii. the reasons, if any, for the withdrawal, and

iii. in the case of litigation, that the client should expect that the hearing or trial will proceed on the datescheduled and that the client should retain new counsel promptly,

(b) subject to the lawyer'S right to a lien, deliver to or to the order of the client all papers and property towhich the client is entitled;

(c) give the client all relevant information in connection with the case or matter;

(d) account for all funds of the client then held or previously dealt with, including the refunding of anyremuneration not earned during the representation;

(e) promptly render an account for outstanding fees and disbursements; and

(f) co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoidprejudice to the client.

(g) comply with the applicable rules of court.

Commentary

Where the lawyer who is discharged or withdraws is a member of a firm, the client should understand thatthe lawyer and the firm are no longer acting for the client.

Where upon the discharge or withdrawal of the lawyer, the question of a right of lien for unpaid fees anddisbursements arises, the lawyer should have due regard to the effect of its enforcement upon the client'sposition. Generally speaking, the lawyer should not enforce the lien if to do so would prejudice materiallythe client's position in any uncompleted matter. See subrule 2.07 (12).

The obligation to deliver papers and property is subject to a lawyer's right of lien. In the event ofconflicting claims to such papers or property, the lawyer should make every effort to have the claimantssettle the dispute.

Co-operation with the successor lawyer will normally include providing any memoranda of fact and lawthat have been prepared by the lawyer in connection with the matter, but confidential information notclearly related to the matter should not be divulged without the written consent of the client. A lawyeracting for several clients in a case or matter who ceases to act for one or more ofthem should co-operate

with the successor lawyer or lawyers to the extent required by the rules and should seek to avoid anyunseemly rivalry, whether real or apparent.

Duty of Successor Lawyer

2.07 (10) Before agreeing to represent a client, a successor lawyer shall be satisfied that the former lawyerhas withdrawn, or has been discharged by the client.

Commentary

It is quite proper for the successor lawyer to urge the client to settle or take reasonable steps towardssettling or securing any outstanding account of the former lawyer, especially if the latter withdrew for goodcause or was capriciously discharged. But if a trial or hearing is in progress or imminent or if the clientwould otherwise be prejudiced, the existence of an outstanding account should not be allowed to interferewith the successor lawyer acting for the client.

2.07 (11) A successor lawyer shall

(a) urge the client to arrange for the prompt payment to the lawyer ofdisbursements paid by the lawyer onbehalf of the client, and

(b) arrange for a review of the outstanding fees owed by the client to the lawyer, with the objective ofarranging payment thereof within a time reasonable in the circumstances.

(c) urge the client to take reasonable steps to payor to secure any account or to make paymentarrangements satisfactory to the previous lawyer offees and disbursements owing by the client to theprevious lawyer. .

Commentary

With respect to the matter being transferred to other counsel, the transferring lawyer may request that thereceiving lawyer undertake to pay an outstanding account from the monies ultimately recovered by thatlawyer. Where the matter in question is subject to a contingency agreement, the respective lawyers mayagree to divide the contingent fee on the basis of apportionment of total effort required to effect recovery.

Transfer of File and Solicitor's Lien

2.07 (12) A lawyer shall not assert a solicitor's lien against property ofa client who is unable to pay thelawyer's account in circumstances in which to do so would materially prejudice the client.

Commentary

A lawyer is entitled to a solicitor's lien over property of the client in certain circumstances. However, thelawyer has a duty to decline to enforce the lien for non-payment of legal fees if the client is unable to payand assertion of the lien would materially prejudice the client's position in any uncompleted matter(material prejudice being understood to exceed mere inconvenience to the client). A lawyer should notenforce a solicitor's lien for non-payment if the client is prepared to enter into an agreement that reasonablyassures the lawyer of payment in due course.

4.01 THE LAWYER AS ADVOCATE

Advocacy

4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably withinthe limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

Role in Adversary Proceedings - In adversary proceedings, the lawyer has a duty to the client to raisefearlessly every issue, advance every argument, and ask every question, however distasteful, which thelawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of everyremedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means,without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour,fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing where justicecan be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formalitybecause, unless order is maintained, rights cannot be protected. This rule applies to the lawyer as advocate,and therefore extends not only to court proceedings but also to appearances and proceedings before boards,administrative tribunals, arbitrators, mediators, and others who resolve disputes, regardless of their functionor the informality of their procedures. The lawyer's function as advocate is openly and necessarily partisan.Accordingly, the lawyer is not obliged (save as required by law or under these rules and subject to theduties ofa prosecutor set out below) to assist an adversary or advance matters derogatory to the client'scase In adversary proceedings that will likely affect the health, welfare, or security of a child, a lawyer

should advise the client to take into account the best interests of the child, where this can be done withoutprejudicing the legitimate interests of the client. When acting as an advocate, a lawyer should refrain fromexpressing the lawyer's personal opinions on the merits of a client's case. When opposing interests are notrepresented, for example, in without notice or uncontested matters or in other situations where the fullproof and argument inherent in the adversary system cannot be achieved, the lawyer must take particularcare to be accurate, candid, and comprehensive in presenting the client's case so as to ensure that thetribunal is not misled. The lawyer should never waive or abandon the client's legal rights, for example, anavailable defence under a statute of limitations, without the client's informed consent.

In civil proceedings, it is desirable that the lawyer should avoid and discourage the client from resorting tofrivolous or vexatious objections, or from attempts to gain advantage from slips or oversights not going tothe merits, or from tactics that will merely delay or harass the other side. Such practices can readily bringthe administration ofjustice and the legal profession into disrepute.

Duty as Defence Counsel - When defending an accused person, a lawyer's duty is to protect the client asfar as possible from being convicted except by a tribunal of competent jurisdiction and upon legal evidencesufficient to support a conviction for the offence with which the client is charged. Accordingly, andnotwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on anyevidence or defences including so-called technicalities not known to be false or fraudulent.

Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence,and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer thefactual and mental elements necessary to constitute the offence, the lawyer, if convinced that theadmissions are true and voluntary, may properly take objection to the jurisdiction of the court, or to theform of the indictment, or to the admissibility or .sufficiency of the evidence, but must not suggest thatsome other person committed the offence or call any evidence which, by reason of the admissions, thelawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with suchadmissions, for example, by calling evidence in support of an alibi intended to show that the accused couldnot have done or, in fact, has not done the act. Such admissions will also impose a limit on the extent towhich the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidencegiven by each individual witness for the prosecution and argue that the evidence taken as a whole is

insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should gono further than that.

4.01 (2) When acting as an advocate, a lawyer shall not:

(a) abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal inthemselves, are clearly motivated by malice on the part of the client and are brought solely for the purposeof injuring the other party;

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest ordishonourable;

(c) appear before ajudicial officer when the lawyer, the lawyer's associates or the client have business orpersonal relationships with the officer that give rise to or might reasonably appear to give rise to pressure,influence, or inducement affecting the impartiality of the officer, except where all parties consent and it isin the interests ofjustice;

(d) endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or actionof a tribunal or any of its officials in any case or matter by any means other than open persuasion as anadvocate;

(e) knowingly attempt to deceive a tribunal or influence the course ofjustice by offering false evidence,misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought tobe disclosed, or otherwise assisting in any fraud, crime, or illegal conduct;

(t) knowingly misstate the contents of a document, the testimony of a witness, the substance of anargument, or the provisions of a statute or like authority;

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as amatter of which notice may be taken by the tribunal;

(h) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to bedirectly on point and that has not been mentioned by an opponent;

(i) dissuade a witness from giving evidence or advise a witness to be absent;

G> knowingly permit a witness or party to be presented in a false or misleading way or to impersonateanother; .

(k) knowingly misrepresent the client's position in the litigation or the issues to be determined in thelitigation

(I) needlessly abuse, hector, or harass a witness;

(m) when representing a complainant or potential complainant, attempt to gain a benefit for thecomplainant by threatening the laying of a criminal charge or by offering to seek or to procure thewithdrawal ofa criminal charge;

(n) needlessly inconvenience a witness; or

(0) appear before a court or tribunal while under the influence of alcohol or a drug.

Commentary

In civil proceedings, the lawyer has a duty not to mislead the tribunal about the position of the client in theadversary process. Thus, a lawyer representing a party to litigation who has made or is party to anagreement made before or during the trial by which a plaintiff is guaranteed recovery by one or moreparties notwithstanding the judgment of the court, should immediately reveal the existence and particularsof the agreement to the court and to all parties to the proceedings. A lawyer representing an accused orpotential accused may communicate with a complainant or potential complainant, for example, to obtainfactual information, to arrange for restitution or an apology from the accused, or to defend or settle anycivil claims between the accused and the complainant. However, where the complainant or potentialcomplaint is vulnerable, the lawyer must take care not to take unfair or improper advantage of thecircumstances. Where the complainant or potential complainant is unrepresented,·the lawyer should begoverned by the rules about unrepresented persons and make it clear that the lawyer is acting exclusively inthe interests of the accused or potential accused and, accordingly, the lawyer's comments may be partisan.When communicating with an unrepresented complainant or potential complainant, it is prudent to have awitness present.

Duty as Prosecutor

4.01 (3) When acting as a prosecutor, a lawyer shall act for the public and the administ:-ation ofjusticeresolutely and honourably within the limits of the law while treating the tribunal with candour, fairness,courtesy, and respect.

Commentary

When engaged as a prosecutor, the lawyer's prime duty is not to seek to convict but to see that justice isdone through a fair trial on the merits. The prosecutor exercises a public function involving much discretionand power and must act fairly and dispassionately. The prosecutor should not do anything that mightprevent the accused from being represented by counselor communicating with counsel and, to the extentrequired by law and accepted practice, should make timely disclosure to defence counselor directly to anunrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt orinnocence.

Discovery Obligations

4.01 (4) Where the rules ofa tribunal require the parties to produce documents or attend on examinationsfor discovery, a lawyer, when acting as an advocate

(a) shall explain to his or her client:

i. the necessity of making full disclosure of all documents relating to any matter in issue;

ii. the duty to answer to the best of his or her knowledge, information,and belief, any proper questionrelating to any issue in the action or made

(b) shall assist the client in fulfilling his or her obligations to make full disclosure; and

(c) shall not make frivolous requests for the production ofdocuments or make frivolous demands forinformation at the examination for discovery.

Disclosure of Error or Omission

4.01 (5) A lawyer who has unknowingly done or failed to do something that if done or omitted knowinglywould have been in breach of this rule and who discovers it, shall, subject to rule 2.03 (Confidentiality),disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

Commentary

If the client desires that a course be taken that would involve a breach of this rule, the lawyer must refuseand do everything reasonably possible to prevent it. If that cannot be done the lawyer should, subject to rule2.07 (Withdrawal from Representation), withdraw or seek leave to do so.

Courtesy

4.01 (6) A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons withwhom the lawyer has dealings in the course of litigation.

Commentary

Legal contempt ofcourt and the professional obligation outlined here are not identical, and a consistentpattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt,might well merit discipline.

Undertakings

4.01 (7) A lawyer shall strictly and scrupulously carry out any undertakings given in the course oflitigation.

Agreement on Guilty Plea

4.01 (8) Before a charge is laid or at any time after a charge is laid, a lawyer for an accused or potentialaccused may discuss ~ith the prosecutor the possible disposition ofthe case, unless the client instructsotherwise.

4.01 (9) Where, following investigation,

(a) a lawyer for an accused or potential accused advises his or her client about the prospects for an acquittalor finding ofguilt;

(b) the lawyer advises the client of the implications and possible consequences of a guilty plea andparticularly of the sentencing authority and discretion of the court, including the fact that the court is notbound by any agreement about a guilty plea;

(c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offencecharged; and

(d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea, the lawyer mayenter into an agreement with the prosecutor about a guilty plea.

Commentary

The public interest in the proper administration ofjustice should not be sacrificed in the interest ofexpediency.

4.05 RELATIONS WITH JURORS

Communications before Trial

4.05 (I) When acting as an advocate, before the trial ofa case, a lawyer shall not communicate with orcause another to communicate with anyone that the lawyer knows to be a member of the jury panel for thattrial.

Commentary

A lawyer may investigate a prospective juror to ascertain any basis for challenge, provided that the lawyerdoes not directly or indirectly communicate with the prospective juror or with any member of theprospective juror's family. But a lawyer should not conduct or cause another, by financial support orotherwise, to conduct a vexatious or harassing investigation of either a member ofthe jury panel or a juror.

Disclosure of Information

4.05 (2) When acting as an advocate, a lawyer shall disclose to the judge and opposing counsel anyinformation of which the lawyer is aware that a juror or prospective juror:

(a) has or may have an interest, direct or indirect, in the outcome of the case;

(b) is acquainted with or connected in any manner with the presiding judge, any counselor any litigant; or

(c) is acquainted with or connected in any manner with any person who has appeared or who is expected toappear as a witness unless the judge and opposing counsel have previously been made aware of theinformation.

4.05 (3) A lawyer should promptly disclose to the court any information that the lawyer has about improperconduct by a member ofa jury panel or by a juror toward another member of the jury panel, another juror,or to the members ofa juror's family.

Communication During Trial

4.05 (4) Except as permitted by law, when acting as an advocate, a lawyer shall not during a trial of a casecommunicate with or cause another to communicate with any member of the jury.

4.05 (5) A lawyer who is not connected with a case before the court shall not communicate with or causeanother to communicate with any member of the jury about the case.

4.05 (6) A lawyer must not have any discussion with a member of the jury about its deliberations aftertrial.

Security of Court Facilities

4.06 (3) A lawyer who has reasonable grounds for believing that a dangerous situation is likely to developat a court facility shall inform the local police force and give particulars.

Commentary

Where possible, the lawyer should suggest solutions to the anticipated problem such as:

(a) the necessity for further security, and

(b) that judgment ought to be reserved.

Where possible, the lawyer should also notifY other lawyers who are known to be involved in proceedingsat the court facility where the dangerous situation is likely to develop. Beyond providing a warning ofdanger, this notice is desirable because it may allow them to suggest security measures that do not interferewith an accused's or a party's right to a fair trial. If client information is involved in those situations, thelawyer should be guided by the provisions of Rule 2.03 (Confidentiality).

Fou(

DRAFT

RETAINER AGREEMENT

Dear--------

Re: Legal Services

You have requested and I have agreed to act as your lawyer in respect of criminal chargesagainst you, namely: [describe charges].

You will need to provide me immediately with a retainer of $ 0 This amountcovers <", : :

If this matter is to proceed to trial, my fee is ~ _The balance of these fees and any anticipated expenses are due two months prior to your trialdate. Unless I have received the necessary amount at that time, I will not represent you at thetrial. In addition to my fee, you will be required to pay GST, and other expenses related to yourcase. Minor expenses include long distance telephone calls, photocopying, delivery charges,faxes and witness fees. Some cases also require hiring expert witnesses. If expert witnesses arenecessary for your case, I will discuss this with you and advise you of the cost. You will need toeither provide me with an additional retainer or pay such costs directly. Should you be chargedwith other offences, my fees may have to be adjusted. The fee quoted does not include anyappeal, should an appeal be necessary.

You are free to end my services b~fore your case is completed by writing me a letter or note. Ifyou do, you agree to pay my fees and expenses up to the date of ending those services. I will alsoask you to sign a court form which tells the court I no longer act for you.

I am free to withdraw my services at any time if I hav!';: good reason. For example, I wouldwithdraw my services if a client:

misrepresented facts or failed to disclose important facts;

did not cooperate with me in any reasonable reque};t;

ask me to do something unethical or illegal;

did not pay my bills on time without making other arrangements for payment.

Again, you would have to pay my fees and expenses up to the time I stopped acting for you.

I would also have to withdraw my services if I learned ofa: c'onflict of interest that would makeit unethical for me to continue to act for you. A conflict of' interest occurs when what is best forone of the clients of my firm somehow is not best for or hurts another of our clients. If I have towithdraw my services for you because of a conflict of interest, you will only have to pay my feesand expenses up to the time I stopped acting for you. :: ~

'"'.

(.'. ;;:: .. --: ..r:

~_ I..;'" J1) :

DRAFTr ' ~ --'

I '

My schedule often prevents me from being able to return telephone calls or to see clientswhenever they wish. In fairness to my other clients whose matters may then be before the court,my attention will be primarily on the conduct of these cases. Because of this, it may be somedays before I can return your call unless it is urgent. Please let my secretary know if a call isurgent, and I will call back as soon as I can.

If other problems arise as a result of the charges, you understand that I have not been retained byyou to act on those matters. Please inform me if there are other matters for which you mayrequire legal representation, and I may refer you to anotherAawyer for assistance.

. ..... \.

Your next appearance date is [date] and, unless specificl arrangements are made, you will berequired to attend court on that date to fix a trial date.

If you understand and agree to the terms of this agreement, please sign below and return onecopy of this letter to our office.

Yours truly,

Timothy J. Brown

I'l '

I understand and agree to the terms in this retainer agreement.:'C (t"r ; "

Dated at the City of Regina, in the Province of Saskatchewan, this __ day of_______, 2006.

SAMPLE LETTER OF WITHDRAWAL

Provincial Courthouse1815 Smith StreetRegina, SKS4P3V7 By Fax: 787-7037

Attention: Clerk for Courtroom _at a.1p.m., -', 2008

Re: R. v. Client's name and court date

, ';"

Pursuant to Provincial Court practice directives, I am writing to inform you that Iam withdrawing from the record for the above captioned matter. Unlessotherwise notified by the court, it is not my intention to appear on that date.

Thank you.

Yours truly,

Lawyer

Cc: Trial CrownClient