The recent amendments will hopefully bring some clarification to when our duty will arise, but may also expand that positive duty to encompass reporting behaviour or conduct that is far more prevalent than under the previous rule.
In October 2014 the Rules were amended to reflect the Federation of Law Societies of Canada’s (FLSC) Model Code. Rule 7.1-3 read as follows:
Duty to Report Misconduct (October 2014)
7.1-3 A lawyer shall report to the Law Society, unless to do so would be unlawful or would involve a breach of solicitor-client privilege,
(a) the misappropriation or misapplication of trust monies;
(b) the abandonment of a law or legal services practice;
(c) participation in serious criminal activity related to a licensee’s practice;
(d) the mental instability of a licensee of such a serious nature that the licensee’s clients are likely to be materially prejudiced; and
(e) [FLSC - not in use]
(f) any other situation where a licensee’s clients are likely to be severely prejudiced.
Convocation voted to change the wording of this rule to reflect amendments the FLSC recently made to the Model Code in March 2016. Section 7.1-3(e) will now read:
Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society conduct that raises a substantial question about the lawyer’s capacity to provide professional services.
I had questioned in my previous post the earlier wording which required us to report another lawyer if the “mental instability” of that lawyer was of such a “serious nature” as to “materially prejudice” a client’s interest. I think the new amendment will provide some clarity by removing the words “mental instability” and including the more widely recognized term of “capacity”. If other lawyers are aware that a lawyer does not have the requisite capacity to provide professional services, or their conduct raises a substantial question as to their capacity, lawyers should be under a positive duty to report.
The recent amendments also revised the wording of Rule 7.1-3 (d) which now states:
Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer.
When the LSUC implemented the Model Code in October 2014, it chose not to use this subsection of the Rule. The most recent amendments have now added it. Arguably this addition broadens our duty to report another lawyer for misconduct.
Previously, besides situations of ‘mental instability’, we were only under a positive obligation to report misappropriation of trust funds, an abandoned practice, criminal activity and the catch-all situation where a client was likely to be severely prejudiced – occurrences that are rather rare. But how many times have you seriously questioned the honesty, trustworthiness, or competency of another lawyer? Unfortunately, if you are anything like me, it’s been a few times during my career. With this new sub-rule we may not have any choice but to report these lawyers.
Am I saying you should report a fellow lawyer for not being completely truthful about how many trials they’ve won? No, not likely. But I think, as with all of the rules, one should look at the circumstances as a whole, use your judgement, and remind yourself of the high standards of the legal profession.
While reporting a fellow lawyer may result in serious ramifications for that lawyer (and potentially for the reporting lawyer), not reporting could result in even more serious consequences for that lawyer’s clients if the conduct prejudices their case and legal rights. Burying our heads in the sand and ignoring the misconduct of a fellow lawyer (including their lack of honesty, trustworthiness and competency) could result in worse implications for that lawyer, the public, and the profession as a whole.
Understandably, some law societies and legal ethics academics expressed concerns about the language that described “mental instability” as “misconduct”. With that, the amendments remove the word “misconduct” from the title of the rule.
Amendments were also made to the commentary associated with sub-rule 7.1-3, including clarifying that when you report anther lawyer it must be “made without malice or ulterior motive”. The commentary also now uses language that is less discriminatory for describing when we should be encouraging other lawyers to seek professional help: i.e. removing “lawyers who suffer from such problems” to “lawyers who face such challenges”.
Other rules that were amended include Rule 3.4-27 (Transactions with Clients), Rule 3.2-1 (Quality of Service) and Rules 7.8-1 &7.8-2 (Errors and omissions). The full report on the amendments can be found here.