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SACROSANCTITY:


PRINCIPLES AND PRACTICE OF

PROFESSIONAL, ETHICAL AND LEGAL RESPONSIBILITY

______________________________________________________________________________


DAVID C. DAY, Q.C.

Newfoundland Bar

______________________________________________________________________________


SYNOPSIS


Summaries of, and excerpts from, decisions, legislation, authors, and reports (usually omitting footnotes or endnotes) on principles and practice of professional, ethical, and legal responsibility; primarily from June 2006 to June 2008


(The seven previous papers on this subject, and an unabridged version of this paper, cumulatively covering the period 03 September 1189 (the birth date of legal memory) to June 2008,

are at lewisday.ca>ethics.)


14 July 2008


^ TABLE OF CONTENTS


DEDICATION


1.0 INTRODUCTION


2.0 SOURCES AND STANDARDS OF RESPONSIBILITY


2.1 Professional and Ethical Responsibility

2.2 Legal Responsibility


^ 3.0 APPLICATION OF STANDARDS OF RESPONSIBILITY


3.1 Relationships with Clients – Retainer and Authority


3.2 Relationships with Clients – Conflicts Of Duty


3.2.1 Generally


3.2.2 Conflict found

3.2.3 Conflict not found


^ 3.3 Relationships with Clients – Rendering Services


3.3.1 Generally


3.3.2 Confidentiality and Privilege


3.3.3 Negotiations


3.4 Relationships with Clients – Personal


3.5 Relationships with Clients – Special Cases


^ 3.6 Relationships with Third Parties


3.7 Relationships with Other Lawyers


Table Of Contents (General)

(Continued)

______________________________________________________________________________


3.8 Relationships with Courts


3.9 Relationships with State


3.10 Relationships with Technology


^ 4.0 PROCEEDINGS DERIVING FROM BREACHES OF STANDARDS OF RESPONSIBILITY


4.1 Administrative: Disciplinary


4.2 Judicial: Penal


4.3 Judicial: Civil


5.0 FEES AND COSTS


5.1 Fees


5.2 Costs


^ TABLE OF CONTENTS


DEDICATION

No right to tax-free counsel

1.0 INTRODUCTION

2.0 SOURCES AND STANDARDS OF RESPONSIBILITY

2.1 Professional and Ethical Responsibility

Good-Looking Lawyers Make More Money, Researcher Says

Hitting the books

Profit pursuit imperiling professionalism

Professionalism Clearly Defined

Time escapes me: Workaholics and time perception

The Ratings Game [:] Lawyer vie to be ‘super’ and ‘best,’ to the

consternation of some ethics regulators

The Mayonnaise Jar and 2 Cups of Coffee

Women lawyers face same challenges as trailblazers

Barristers may be graded on quality

Access to legal representation remains a pricey proposition

Exile On Bay Street

The Search For Justice

Victorious court battles: Just the Beginning

B.C. lawyer for the poor killed on cycling mission

Law firms are investing in the finer points of etiquette

When does legal advertising cross the line

From Bizarre To Ridiculous – That Was 2006

The 48 Secret Rules of Lawyering

Serial Liars[:] [Immoral Ethics in an Immoral System]

Advocacy: Simplicity of utterance

Professional Responsibility

The Independence Of The Bar: An Unwritten Constitutional Principle

Divorce: how lawyers make things worse

^ 2.2 Legal Responsibility

755165 Ontario v. Parsons, Myles-Leger Ltd., Law Society (NL)

Looking to practise elsewhere? National Mobility Agreement to

expand and include three territories

Joint wills could be minefield for estate lawyers

^ 3.0 APPLICATION OF STANDARD OF RESPONSIBILITY

3.1 Relations with Clients – Retainer and Authority

So it’s come to this: firing a client

Ethical Considerations in Collaborative Law Practice

The retaining shield

The Billable Hour Must Die [:] It Rewards Inefficiency. It Makes

Clients Suspicious. And It May Be Unethical


^ 3.2 Relationships with Clients – Conflicts of Duty


3.2.1 Generally


Lessons Learned: Lawyers’ Biggest Career

Mistakes and Successes

Conflicting interests cause interesting conflicts

Clear conflicts? [-] The Competition for top legal talent continues

to intensify, but firms must tread carefully to avoid conflicts

When moving to another firm, how should a lawyer weigh

conflicts of interest against client confidentiality

Conflicts of Interest: The Supreme Court’s Ethical

Trilogy – MacDonald Estate, Neil, and Strother

Legal Ethics in Child Custody and Dependency Proceedings

Who are ‘Clients’ (and Why It Matters)”


^ 3.2.2 Conflict found

Brockville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd.

Advice from former partner turned judge results in

firm’s removal

Strother v. 3464920 Canada Inc.

Cleanese Canada Inc. v. Murray Demolition Corp.

Paul Fontiane c. Sa Majeste la Riene ET ENTRE Cristina

Nedelcu c. Sa Majeste la Reine Supreme Court of

Canada Bulletin of Proceedings

Chern v. Chern

^ 3.2.3 Conflicts not found

Berg v. Bruton (headnote and paras 8-22)

Berg v. Bruton (summary)

3.3 Relationships with Clients – Rendering Services

3.3.1 Generally

Profiting from divorce

[L]aw practice has gone to the dogs - dogs and to the kids

Using plain language to improve client relations

Recording of ‘true intent’ advised for transfers of

jointly held assets

Chief Justice defends Supreme Court and legal profession

How to arrange a kinder marriage contract

The legal opinion jitterbug

Closing Time [:] The challenges of shutting down

a sole practise

Client Conundrums

Family Law

The Best Case I Never Had: Lessons in Solicitor

Client Communications

Ohio Won’t Block Letters to Accident Victims

A Suicidal Client

[C]ompetency is a legal, not a medical test

The Do’s and Don’ts of pre-nuptials

Compassionate Checklist

The Year in Family Law

Grammarians take heed of telecomma dispute

Filing Away For Future Reference

^ Hall v. McLaughlin Estate

Legal Writing

Cherneski v. Cherneski

My client, my case: You can’t have one without the other

The Chicken or the Client? [:] Lawyers can’t focus on their

cases to the exclusion of those who bring them

^ 3.3.2 Confidentiality and Privilege

Attorney Struggles Over Case For Years

Juman v. Doucette

Unsolicited Receipt of Privileged or Confidential Materials:

Withdrawal of Formal Opinion 94-383 (July 5, 1994)

Protect Privilege in Anton Piller cases, Supreme Court Warns

Supreme Court: Litigation privilege Justice on Federal

documents expired

^ Blank v. Canada

Blank v. Canada (Minister of Justice)

Does solicitor-client privilege extend to ‘when did you

get legal advice?’

Goodis v. Ontario (Ministry of Correctional Services)

3.3.3 Negotiations

Case Comment on ^ LeVan v. LeVan: Overreaching in the

Formation of a Pre-nuptial Contract

LeVan v. LeVan

Adversarial approach not appropriate when representing

clients in mediation

Family law layers legally obliged to ensure disclosure

of client assets

Domestic Contracts

^ Vollner v. Jones

Lawyer’s Obligation of Truthfulness When Representing a

Client in Negotiation

Rules Of The Game [:] Ethics Rules on Truthfulness Give

Lawyers a Little Room to Maneuver in Negotiations

Ex-husband didn’t fully disclose

Mediation – Arbitration: a contentious but often

effective compromise

Ridout v. Ridout

Family Law Releases

^ 3.4 Relationships with Clients – Personal

Is sex okay with Clients? That depends on a few things

Sleeping with clients: the ethical debate continues

Ex-Law Society Treasurer gets two-month suspension after

affair with family law client


^ 3.5 Relationships with Clients – Special Cases

Lawyers and the media: why ‘no comment’ won’t do

Raising Interests for Mutual Benefit

Guidance for Lawyers Acting for Survivors of

Indian Residential Schools

A Contrarian View: When to Fire Your Client

Unfair advantage

No easy way to dump clients

To Keep or to Kill [;] The evolving ethics of document destruction

Dealing with the Difficult Client

^ 3.6 Relationships with Third Parties

Lawyer chasing man who used his name to slam judge

Stalking cost lawyer his job [:] Employers should

prepare for failed romances

Judge criticizes parties for tactical disclosure demands

A Family Law Practitioner’s Guide to Dealing with the

Self-Represented Litigant

Self-Represented Litigants in Family and Civil Law Disputes

^ 3.7 Relationships with Other Lawyers

The Falling-Down Professions [:] For lawyers and doctors,

gold-embossed diplomas are no longer so golden

Gay lawyers locked in closet [:] Law school conference told

fear of discrimination alive in legal workplace

Women outpace men in dropout rate

Injustice Rules

Life and the practice of law after suffering professional burnout

Kaplun v. Kaplun

When a lawyer becomes mentally impaired

Lawyer takes dispute into cyberspace

Walker v. Walker


^ 3.8 Relationship with Courts

Immigrant plaintiff gets new trial for ‘offensive’ remarks

by defence counsel

Courtroom uproar continues as lawyer ends up testifying

Legal consultants go hardcore

Private talks [:] Lawyers shouldn’t have ex parte communications

with judges – except when it’s OK

Top judge sounds alarm on trial delays

Not a great body of work

Undisclosed Legal Assistance to Pro See Litigants

Wigs, gowns stay in British criminal courts, but shucked in

civil, family

The self-representation problem

^ Kudoba v. Kudoba

Zhu v. Li

Advocacy Misconduct

Federal Judge Slams Lawyer For Absurd Motion [:] Don’t ask me to

Edit Opponent’s Brief, He Says

Bright-Line Blunder[:] Client loses after suspended

lawyer files notice of appeal

Mamchin v. Mamchin-Burdman

Advocacy: Simplicity of utterance

^ 3.9 Relationship with State

Draft money laundering bill raises numerous compliance concerns

Mob Rule

Stemming the Flow of Illicit Money: A priority for Canada

3.10 Relationships with Technology

Advertising in an electronic age

Guidelines For Practising With New Information Technologies

Choose Up Sides[:] States are split on whether attorneys may

take part in Online legal-match services

Think about e-mail as a medium as well as a message

The Law of the Land [:] ‘I hate BlackBerrys’

The Too Much Information Age[:] Authorities seek clarity

on unsolicited information from prospective clients

E-data dilemmas [-] The ethics of document retention in

an electronic world

Law firms can maximize efficiency through use of

electronic information

Alberta e-discovery order goes well beyond e-communications

Review and Use of Matadata

E-mail Confidential Do those boilerplate confidentiality

notices really work?

The Curmudgeon on Couth

Internet Communications with Prospective Clients When

Disclaimers May Not Be Enough

^ 4.0 PROCEEDINGS DERIVING FROM BREACHES

OF STANDARDS OF RESPONSIBILITY

4.1 Administrative: Disciplinary


Disgraced judge regains licence

O’Toole v. Law Society of New Brunswick

Activist lawyer disbarred for misconduct

Histed v. Law Society (Manitoba)

[D.] v. Law Society of Newfoundland

^ 4.2 Judical: Penal

Lawyer Stole Millions, Indictment Says

Man jailed for cheating some ‘pretty sophisticated’ law firms

R. v. Hyman

Barrister jailed for trying to fram man with fake e-mail

Westmount lawyer, 75, gets 15 months for bilking widows

Willful Blindness’ Confirmed

Class action scrutiny at Milberg Weiss

Paralegal gets house arrest for practising law

4.3 Civil

Ex-law society head, firm sued over sex with family law client

Former head of law society sued for $1.4M

^ Chudy v. Merchant Law Group

Cost of Lawyer’s No-Show Is Climbing

Damage Awards for Solicitor’s Negligence in Family Law:

Quality Control by the Courts v. Encouragemetn of Settlement

Mantella v. Mantella

Walker v. Walker

Wilhelm v. Hickson

Client who settled lawsuit instead of appealing may still sue

attorney for negligence

^ 5.0 FEES AND COSTS

5.1 Fees

Ferlinger v. Maurice J. Neirinck & Assoiciates

Walker v. Schober

Let’s Be Reasonable[:] Client consent to fee agreement doesn’t

mean it’s ethical

Income Tax Act allows deduction of legal fees incurred for the

purpose of producing income

Access to justice tough topic for top court

Overcoming clients’ aversion to paying fees

T. (D.M.C.) v. S. (L.K.)

Time For Change: Unethical Hourly Billing In The Canadian

Profession And What Should Be Done About It

When two plus two doesn’t equal four

McLachlin calls on lawyers, Tabor calls on government

Looking beyone the billable hour

Legal and Accounting Costs

Legal Costs to Obtain Support Amounts

How To Enter Time So That Clients Will Pay For It

5.2 Costs

Costs awarded against law firm personally

Judge rejects $243,314 claim for half day

^ Burry v. Healey

Debora v. Debora

Kloosterman v. Kloosterman

DEDICATION


Dugald Christie


1940 - 2006




Dalhousie Law School presented its 24th Weldon Award for Unselfish Public Service on Thursday, March 8th, 2007. This year the award went posthumously to Vancouver lawyer Dugald Christie, Class of 1966, for his unwavering commitment to making justice accessible to all especially the poor and disabled.

Mr. Christie was best known for founding a network of pro bono clinics, the Western Canadian Society to Access Justice, that today has 61 offices from Campbell River, BC to Winnipeg with over 400 lawyers donating their services.

Mr. Christie's citation, written with the help of his sister Dr. Janet Christie Seely, [which] accompanied this year's Weldon Award presentation [,] commended his selfless work and cited his notable accomplishments:

^ The citation is reprinted from the summer 2007 issue of Hearsay, published by Dalhousie Law School, Halifax.

Dugald Christie was born in New York on November 7, 1940. After obtaining his law degree from Dalhousie in 1966, he started a law practice in Vancouver and lived in a beautiful house in Lion's Bay. Several dramatic events in his life prompted Dugald's rebellion and major change in his career. An act of God resulted in a landslide that killed his neighbours' two sons and left Dugald's house almost worthless. He took on his neighbours' cause and fought for justice. He succeeded in getting only $5000 in personal recompense and was so incensed by his experience with the justice system that he developed a great empathy for the underdog and more and more pursued his work for the poor. He followed his feelings, but had not said goodbye to reason and prudence.

Dugald wrote of himself: "Now I relieve my rebellion against the ways of the world by bicycling to Ottawa to burn my lawyer's robes, publishing articles that judges are appointed by a system of patronage, by building a small army of lawyers to fight poverty... I lived in a Salvation Army halfway house for three years surrounded by ex-convicts and addicts of all kinds. From that citadel of poverty I attacked the highest figures in the profession.... I do not seem to have any real choice in these matters. Unfortunately, it is not a matter of virtue. I think it comes from my early childhood experiences."

Dugald's first bicycle trip across Canada was in 1998. He was 57 and it wasn't easy. He would cycle across Canada twice more. In 2000, he fasted on the Supreme Court steps in Ottawa to protest the failure of the legal system to provide fair access to the poor in a timely fashion.

In 2002, Dugald took a bus trip from Vancouver to Moncton to pass a resolution at the Canadian Bar Association Annual Meeting to approve a business plan to fund and organize pro bono clinics across the nation for every community over 30,000 people. The proposal failed to win the necessary support. He felt despair and bitterness, but he resolved not to give up on the bar. He wrote: "To me, pro bono is meeting the poor on their own turf and not in the high rise law office. It is rubbing shoulders with the down and out…sympathizing; not pitying."

In March 2006, Dugald received the Lawyer of the Year Award from the B.C. Law Association. In the summer of 2006, at age 65, he once more set out on his bicycle, this time to present a petition to the Prime Minister, and to try for the third time to put his resolution before the Canadian Bar to establish pro bono clinics across Canada at their Annual Meeting in St. John's, Newfoundland. Two days into the journey, he learned that he had been acknowledged for distinguished service by the Canadian Bar. He left his bicycle and took the bus back to Vancouver to receive the award and then resumed his trip.

At 6pm on July 31, 2006 near Sault St. Marie, a mini-van failed to see Dugald on his bicycle and killed him outright. Dugald Christie gave up a lucrative law practice and enviable lifestyle and, in the end, lost his life pursuing the cause of justice for all. His family and the many that supported Dugald and his life's journey pray that the many causes to which he dedicated his life will be completed.

The Weldon Award for Unselfish Public Service, sponsored by the Dalhousie Law School Alumni Association, was established in 1983 to serve as a tribute to the ideals of the Law School's first dean, Richard Chapman Weldon. Mr. Christie's son, Oliver, accepted the award on behalf of the family.

______________________________________________________________________________

"No right to tax-free counsel" Supreme Court"

Makin, Kirk, The Globe And Mail, 25 May 2007.

______________________________________________________________________________


The Charter of Rights does not provide litigants with a blanket right to obtain legal counsel, the Supreme Court of Canada ruled Friday Morning.


The Court made the statement while unanimously upholding a B.C. tax on legal services that critics had criticized as forming a barrier to those who cannot afford legal services.


“Access to legal services is fundamentally important in any free and democratic society,” the judges said, in a ruling that identified no single author.


“In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.”


The ruling soured the legacy of Dugald Christie, a Vancouver lawyer who died several months ago when he was struck by a car as he bicycled across Canada [wearing his black courtroom robes and a “Reform the Justice system” sign on his back] to raise money for his cause – access to justice for the poor. Mr. Christie was just outside Sault Ste. Marie when he was killed.


“Notwithstanding our sympathy for Mr. Christie’s cause, we are compelled to the conclusion that the material presented does not establish the major premise on which the case depends – proof of a constitutional entitlement to legal services in relation to proceedings in courts and tribunals dealing with rights and obligations,” the court said Friday.


Enacted in 1993, the British Columbia’s Social Service Tax Amendment Act imposed a 7-per-cent tax on the price of legal services. While the province maintained that its purpose was to fund legal aid, the proceeds were put into general revenue. This made it difficult to ascertain how much actually ended up enhancing access to justice.


In upholding the tax, the Supreme Court said that its ruling does not foreclose the possibility that in certain, very specific circumstances, it may find that a fundamental right to counsel is guaranteed by the Charter of Rights and Freedoms.


“The right to access the courts is not absolute and a legislature has the power under s. 92(14) of the Constitution Act, 1867, to impose at least some conditions on how and when people have a right to access the courts,” it said.


“We conclude that the text of the constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.”


David Stratas, a Toronto constitutional lawyer with Heenan Blaikie LLP, said that the court has ruled out a “broad right of free access to justice for all on every occasion.


“In other words, government does not have to set up a ‘judicare’ scheme where people have cost effective access to legal services in all contexts at all times,” Mr. Stratas said. “While the door is slammed shut on broad claims of access to justice without obstacles, it remains ajar for individual claims based on good evidence showing tough circumstances.”


Mr. Strates said that the claimant’s aim was too sweeping. “The problem with the claim was that it tried to strike out the tax on all occasions in all contexts without sufficient evidence in support of such a sweeping remedy,” he said. “A more surgical approach based on a few clients’ circumstances might have gotten further.”


“Another way of seeing the case is that the litigant gave the court only half the deck of cards – just the cards showing the hardship of the tax,” Mr. Stratas said. “The court needed the other half of the deck, which is the fiscal impact of striking down the tax. If you are seeking sweeping relief, you need sweeping evidence in support.”




1.0 INTRODUCTION





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