ERIN C. COWLING
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Updated Rules of Professional Conduct: Expanding Our Duty to Report Another Lawyer for Misconduct?

6/14/2016

1 Comment

 
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On May 26, 2016, Convocation approved amendments to the Law Society of Upper Canada’s Rules of Professional Conduct, including amendments to the rule governing our duty to report another lawyer. I have previously written about this professional obligation on my blog here.

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.

The Amendments
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.  

Other Amendments
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.



1 Comment
Thomas Courtney
11/1/2020 07:47:09 pm


A lawyer was hired by 3 defendants in a civil matter. The plaintiff cautioned the lawyer from the very start about the dishonesty of the defendants and provided a complete disclosure and evidence that would prove the plaintiff to be telling the truth.
The defendants provided a completely version of events . The one defendant alleged he hired the plaintiff and entered into an agreement with the plaintiff. Also goes on to accuse the plaintiff to not having valid insurance, wsib, and didnt provide the servise that was agreed .
The plaintiff raised very good points about the defendant not being present nor was he actually able to hire or enter into such agreement as he was not there to do so . Also the plaintiff provided text message that showed the brother saying that he was only the book keeper . . The lawer still provided a defense based on his statements and filed it with the courts.


#2.

A day before a settlement conference the plaintiff received an email from the defendant suggesting they had the hearing time changed till 1pm. Also saying things like the CRA is looking for the plaintiff, that the defendants have 3 law suits to serve the plaintiff.
This is without a doubt an attempt to divert the plaintiff from showing up to court the following day. However he did and addressed the letter to the judge . When asked the defendant about it he denied knowing anything about the letter.


#3.
The plaintiff called the police on the defendant for harassment 4 times which they continued even after the police cautioned them to have no contact. The denendant says in an email that i lost that right when i sued him . And remain to contact the plaintiff for 3 more calls to police where they were then threatened to be arrested next time . However yet again he still contacts the plaintiff.

#4
The defendant was served with a civil suit and shortly later fires the lawyer. The defendant lied on an affidavit of service saying he served the defense by hand delivery "visually" identifies the plaintiff to be the person he served . He filed it to the court
The plaintiff was not served with that defense and has proof that he was not anywhere near that place he was served. Also had camera evidence to show that the defendant was not on the property at all to serve the document. The plaintiff also didnt live at the address .
This was shown to the defendant lawyyer and also provided evidence of his fraudulent act .

The lawer ignoring the fraudulent act suggest to the plaintiff that he didnt need to serve it personally and the courts only care that i was given the document she was trying to belittle the fraud act trying to suggest im unaware of the rules and the document was infact legal.

#5

The lawyer filed a motion to strick the plaintiff claim in small claims or have it joined with the civil case alleging they were of the same facts and would be the same evidence used . HINT remember #1 and the defense.

#6

The lawyer continues filing motions for the same saught releif which was put over pending an amendment to my statement of claim which was to remove the defendant that was apart of the small claims matter. The lawyer was made awear of this as well had a copy of the amended copy where is very clears the plaintiff was not seeking any damages that relate to the claim in small claims.

#7

The defendant lawyer knew all the issues were moot as there was no possible way that a judge would bringbthe 2 matters together as the one defendant was a accusing another of saying the defamation statement. She was acting for all the defendants which would be a conflict .
Plus the fraudulent defense which would cause both cases to conflicting as well.

#8
The lawyer again files a motion however forgetting to put in a motion record and also a conformation of motion . Seeking the same releif again. #9
The plaintiff had enough and filed a motion requesting the lawyer be removed for using sharp practice as well for a judge to strick the defense and have the defendant held in contempt for that document.

The motion was not heard due to an affidavit was missing and was put over 2 weeks however ordering the approval to submita fresh statement of claim once the affidavit is heard. And the issus of the motion on the fraud and lawyers conduct would be heard.

#9
The lawyer again filed another motion submitting a factum which now has the honest version of events to the agreement however she ises the defendant defence as evidence which is the lies . Also neglected to saying about the returnndate for the motion which was still returning that she filed seeking the same releif .


She has now removed herself as the lawyer and my case will most likely get tossed as the judge who read her motion refused to let me speak or hear my motion saying hes c

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    2019 Canadian Law Blog Awards Winner
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    Erin C. Cowling is a freelance lawyer, entrepreneur, legal career consultant researcher & writer,  and President and Founder of Flex Legal Network Inc., a network of freelance lawyers.
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