Chapter 3 – Relationship to Clients

3.1 Competence

Definitions

3.1-1 In this rule “Competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including:

  • knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practises;
  • investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action;
  • implementing as each matter requires, the chosen course of action through the application of appropriate skills, including:
  • legal research;
  • analysis;
  • application of the law to the relevant facts;
  • writing and drafting;
  • negotiation;
  • alternative dispute resolution;
  • advocacy; and
  • problem solving;
  • communicating at all relevant stages of a matter in a timely and effective manner;
  • (e) performing all functions conscientiously, diligently and in a timely and cost-effective manner;
  • (f) applying intellectual capacity, judgment and deliberation to all functions;
  • (g) complying in letter and spirit with all rules pertaining to the appropriate professional conduct of
  • lawyers;
  • (h) recognizing limitations in one’s ability to handle a matter or some aspect of it and taking steps
  • accordingly to ensure the client is appropriately served;
  • (i) managing one’s practice effectively;
  • (j) pursuing appropriate professional development to maintain and enhance legal knowledge and
  • skills; and
  • (k) otherwise adapting to changing professional requirements, standards, techniques and practices.

Competence

3.1-2 A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.


Commentary

  • As a member of the legal profession, a lawyer is held out as knowledgeable, skilled and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal matters to be undertaken on the client’s behalf.
  • Competence is founded upon both ethical and legal principles. This rule addresses the ethical principles. Competence involves more than an understanding of legal principles: it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas of law in which the lawyer practises.
  • In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a particular matter, relevant factors will include:
    (a) the complexity and specialized nature of the matter;
    (b) the lawyer’s general experience;
    (c) the lawyer’s training and experience in the field;
    (d) the preparation and study the lawyer is able to give the matter; and
    (e) whether it is appropriate or feasible to refer the matter to, or associate or consult with, a
    lawyer of established competence in the field in question.
    [4] In some circumstances, expertise in a particular field of law may be required; often the necessary
    degree of proficiency will be that of the general practitioner.
    [4A] To maintain the required level of competence, a lawyer should develop an understanding of, and
    ability to use, technology relevant to the nature and area of the lawyer’s practice and
    responsibilities. A lawyer should understand the benefits and risks associated with relevant
    technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.
    [4B] The required level of technological competence will depend upon whether the use or
    understanding of technology is necessary to the nature and area of the lawyer’s practice and
    responsibilities and whether the relevant technology is reasonably available to the lawyer. In
    determining whether technology is reasonably available, consideration should be given to factors
    including:
    (a) The lawyer’s or law firm’s practice areas;
    (b) The geographic locations of the lawyer’s or firm’s practice; and
    (c) The requirements of clients.
    [5] A lawyer should not undertake a matter without honestly feeling competent to handle it, or being
    able to become competent without undue delay, risk or expense to the client. The lawyer who
    proceeds on any other basis is not being honest with the client. This is an ethical consideration
    and is distinct from the standard of care that a tribunal would invoke for purposes of determining
    negligence.

3.2 Quality of Service

Quality of Service

3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil.


Commentary

  1. This rule should be read and applied in conjunction with section 3.1 regarding competence.
  2. A lawyer has a duty to provide a quality of service at least equal to that which lawyers generally expect of a competent lawyer in a like situation. An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service.
  3. A lawyer has a duty to communicate effectively with the client. What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.
  4. A lawyer should ensure that matters are attended to within a reasonable time frame. If the lawyer can reasonably foresee undue delay in providing advice or services, the lawyer has a duty to so inform the client, so that the client can make an informed choice about his or her options, such as whether to retain new counsel.

    Examples of expected practices
  5. The quality of service to a client may be measured by the extent to which a lawyer maintains certain standards in practice. The following list, which is illustrative and not exhaustive, provides key examples of expected practices in this area:
  • keeping a client reasonably informed;
  • answering reasonable requests from a client for information;
  • responding to a client’s telephone calls;
  • keeping appointments with a client, or providing a timely explanation or apology when unable to keep such an appointment;
  • taking appropriate steps to do something promised to a client, or informing or explaining to the client when it is not possible to do so;
  • ensuring, where appropriate, that all instructions are in writing or confirmed in writing;
  • answering, within a reasonable time, any communication that requires a reply;
  • ensuring that work is done in a timely manner so that its value to the client is maintained;
  • providing quality work and giving reasonable attention to the review of documentation to avoid delay and unnecessary costs to correct errors or omissions;
  • maintaining office staff, facilities and equipment adequate to the lawyer’s practice;
  • informing a client of a proposal of settlement, and explaining the proposal properly;
  • providing a client with complete and accurate relevant information about a matter;
  • making a prompt and complete report when the work is finished or, if a final report cannot be made, providing an interim report when one might reasonably be expected;
  • avoiding the use of intoxicants or drugs, that interfere with or prejudice the lawyer’s services to the client;
  • being civil.
  1. A lawyer should meet deadlines, unless the lawyer is able to offer a reasonable explanation and ensure that no prejudice to the client will result. Whether or not a specific deadline applies, a lawyer should be prompt in handling a matter, responding to communications and reporting developments to the client. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects.

Amended April 22, 2016

Limited Scope Retainers

3.2-1A Before undertaking a limited scope retainer the lawyer must advise the client about the nature, extent and scope of the services that the lawyer can provide and must confirm in writing to the client as soon as practicable what services will be provided


Commentary

  1. Reducing to writing the discussions and agreement with the client about the limited scope retainer assists the lawyer and client in understanding the limitations of the service to be provided and any risks of the retainer.
  2. A lawyer who is providing legal services under a limited scope retainer should be careful to avoid acting in a way that suggests that the lawyer is providing full services to the client.
  3. Where the limited services being provided include an appearance before a tribunal a lawyer must be careful not to mislead the tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances.
  4. A lawyer who is providing legal services under a limited scope retainer should consider how communications from opposing counsel in a matter should be managed (See rule 7.2-6A).
  5. This rule does not apply to situations in which a lawyer is providing summary advice, for example over a telephone hotline or as duty counsel, or to initial consultations that may result in the client retaining the lawyer

Honesty and Candour

3.2-2 When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.


Commentary

  1. A lawyer should disclose to the client all the circumstances of the lawyer’s relations to the parties and interest in or connection with the matter, if any that might influence whether the client selects or continues to retain the lawyer.
  2. A lawyer’s duty to a client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.
  3. Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation of the rule. In communicating with the client, the lawyer may disagree with the client’s perspective, or may have concerns about the client’s position on a matter, and may give advice that will not please the client. This may legitimately require firm and animated discussion with the client.

Language Rights

3.2-2A A lawyer must, when appropriate, advise a client of the client’s language rights, including the right to proceed in the official language of the client’s choice.

3.2-2B Where a client wishes to retain a lawyer for representation in the official language of the client’s choice, the lawyer must not undertake the matter unless the lawyer is competent to provide the required services in that language.

Amended May 22, 2015


Commentary

  1. The lawyer should advise the client of the client’s language rights as soon as possible.
  2. The choice of official language is that of the client not the lawyer. The lawyer should be aware of relevant statutory and Constitutional law relating to language rights including the Canadian Charter of Rights and Freedoms, s.19(1) and Part XVII of the Criminal Code regarding language rights in courts under federal jurisdiction and in criminal proceedings. The lawyer should also be aware that provincial or territorial legislation may provide additional language rights, including in relation to aboriginal languages.
  3. When a lawyer considers whether to provide the required services in the official language chosen by the client, the lawyer should carefully consider whether it is possible to render those services in a competent manner as required by rule 3.1-2 and related Commentary.

When the Client is an Organization

3.2-3 Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.


Commentary

  1. A lawyer acting for an organization should keep in mind that the organization, as such, is the client and that a corporate client has a legal personality distinct from its shareholders, officers, directors and employees. While the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected. Further, given that an organization depends on persons to give instructions, the lawyer should ensure that the person giving instructions for the organization is acting within that person’s actual or ostensible authority.
  2. In addition to acting for the organization, a lawyer may also accept a joint retainer and act for a person associated with the organization. For example, a lawyer may advise an officer of an organization about liability insurance. In such cases the lawyer acting for an organization should be alert to the prospects of conflicts of interests and should comply with the rules about the avoidance of conflicts of interests (section 3.4).

Encouraging Compromise or Settlement

3.2-4 A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.


Commentary

  1. A lawyer should consider the use of alternative dispute resolution (ADR) when appropriate, inform the client of ADR options and, if so instructed, take steps to pursue those options.

Threatening Criminal or Regulatory Proceedings

3.2-5 A lawyer must not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten:

  • to initiate or proceed with a criminal or quasi-criminal charge; or
  • to make a complaint to a regulatory authority.

Commentary

  1. It is an abuse of the court or regulatory authority’s process to threaten to make or advance a complaint in order to secure the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid monies, threats to take criminal or quasi-criminal action are not appropriate.
  2. It is not improper, however, to notify the appropriate authority of criminal or quasi-criminal activities while also taking steps through the civil system. Nor is it improper for a lawyer to request that another lawyer comply with an undertaking or trust condition or other professional obligation or face being reported to the Society. The impropriety stems from threatening to use, or actually using, criminal or quasi-criminal proceedings to gain a civil advantage.
  3. It is not improper for a lawyer to advise that a proceeding before a regulatory authority will be initiated or maintained if the benefit to be gained is one that the regulatory authority has the jurisdiction to order in the proceedings. The impropriety stems from threatening to make a complaint for the purpose of obtaining a collateral benefit.

Amended February 26, 2016

Inducement for Withdrawal of Criminal or Regulatory Proceedings

3.2-6 A lawyer must not:

  • give or offer to give, or advise an accused or any other person to give or offer to give, any valuable consideration to another person in exchange for influencing the Crown or a regulatory authority’s conduct of a criminal or quasi-criminal charge or a complaint, unless the lawyer obtains the consent of the Crown or the regulatory authority to enter into such discussions;
  • accept or offer to accept, or advise a person to accept or offer to accept, any valuable consideration in exchange for influencing the Crown or a regulatory authority’s conduct of a criminal or quasi-criminal charge or a complaint, unless the lawyer obtains the consent of the Crown or regulatory authority to enter such discussions; or
  • wrongfully influence any person to prevent the Crown or regulatory authority from proceeding with charges or a complaint or to cause the Crown or regulatory authority to withdraw the complaint or stay charges in a criminal or quasi-criminal proceeding.

Commentary

  1. “Regulatory authority” includes professional and other regulatory bodies.
  2. A lawyer for an accused or potential accused must never influence a complainant or potential complainant not to communicate or cooperate with the Crown. However, this rule does not prevent a lawyer for an accused or potential accused from communicating with a complainant or potential complainant to obtain factual information, arrange for restitution or an apology from an accused, or defend or settle any civil matters between the accused and the complainant. When a proposed resolution involves valuable consideration being exchanged in return for influencing the Crown or regulatory authority not to proceed with a charge or to seek a reduced sentence or penalty, the lawyer for the accused must obtain the consent of the Crown or regulatory authority prior to discussing such proposal with the complainant or potential complainant. Similarly, lawyers advising a complainant or potential complainant with respect to any such negotiations can do so only with the consent of the Crown or regulatory authority. In such circumstances, a lawyer must find a balance between the duty of loyalty to their client and their duty to the administration of justice.
  3. A lawyer cannot provide an assurance that the settlement of a related civil matter will result in the withdrawal of criminal or quasi-criminal charges, absent the consent of the Crown or regulatory authority.
  4. When the complainant or potential complainant is unrepresented, the lawyer should have regard to the rules respecting unrepresented persons and make it clear that the lawyer is acting exclusively in the interests of the accused. If the complainant or potential complainant is vulnerable, the lawyer should take care not to take unfair or improper advantage of the circumstances. When communicating with an unrepresented complainant or potential complainant, it is prudent to have a witness present.