Chapter 6 – Relationship to Students, Employees and Others

6.1 Supervision

Direct Supervision Required

6.1-1 A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions.


Commentary
  1. A lawyer may permit a non‑lawyer to act only under the supervision of a lawyer. The extent of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter, and the experience of the non‑lawyer generally and with regard to the matter in question. The burden rests on the lawyer to educate a non‑lawyer concerning the duties that the lawyer assigns to the non-lawyer and then to supervise the manner in which such duties are carried out. A lawyer should review the non‑lawyer’s work at sufficiently frequent intervals to enable the lawyer to ensure its proper and timely completion.
  2. A lawyer who practises alone or operates a branch or part‑time office should ensure that
  • all matters requiring a lawyer’s professional skill and judgment are dealt with by a lawyer qualified to do the work; and
  • no unauthorized persons give legal advice, whether in the lawyer’s name or otherwise.
  1. If a non-lawyer has received specialized training or education and is competent to do independent work under the general supervision of a lawyer, a lawyer may delegate work to the non-lawyer.
  2. A lawyer in private practice may permit a non‑lawyer to perform tasks delegated and supervised by a lawyer, so long as the lawyer maintains a direct relationship with the client. A lawyer in a community legal clinic funded by a provincial legal aid plan may do so, so long as the lawyer maintains direct supervision of the client’s case in accordance with the supervision requirements of the legal aid plan and assumes full professional responsibility for the work.
  3. Subject to the provisions of any statute, rule or court practice in that regard, the question of what the lawyer may delegate to a non‑lawyer generally turns on the distinction between any special knowledge of the non‑lawyer and the professional and legal judgment of the lawyer, which, in the public interest, must be exercised by the lawyer whenever it is required.

Application

6.1-2 In this rule, a non-lawyer does not include an articled clerk.

Delegation

6.1-3  A lawyer must not permit a non-lawyer to:

  1. accept cases on behalf of the lawyer, except that a non-lawyer may receive instructions from established clients if the supervising lawyer approves before any work commences;
  2. give legal advice;
  3. give or accept undertakings or accept trust conditions, except at the direction of and under the supervision of a lawyer responsible for the legal matter, providing that, in any communications, the fact that the person giving or accepting the undertaking or accepting the trust condition is a non-lawyer is disclosed, the capacity of the person is indicated and the lawyer who is responsible for the legal matter is identified;
  4. act finally without reference to the lawyer in matters involving professional legal judgment;
  5. be held out as a lawyer;
  6. appear in court or actively participate in formal legal proceedings on behalf of a client except as set forth above or except in a supporting role to the lawyer appearing in such proceedings;
  7. be named in association with the lawyer in any pleading, written argument or other like document submitted to a court;
  8. be remunerated on a sliding scale related to the earnings of the lawyer, unless the non-lawyer is an employee of the lawyer;
  9. conduct negotiations with third parties, other than routine negotiations if the client consents and the results of the negotiation are approved by the supervising lawyer before action is taken;
  10. take instructions from clients, unless the supervising lawyer has directed the client to the non-lawyer for that purpose and the instructions are relayed to the lawyer as soon as reasonably possible;
  11. sign correspondence containing a legal opinion;
  12. sign correspondence, unless
    1. it is of a routine administrative nature,
    2. the non-lawyer has been specifically directed to sign the correspondence by a supervising lawyer,
    3. the fact the person is a non-lawyer is disclosed, and
    4. the capacity in which the person signs the correspondence is indicated;
  13. forward to a client or third party any documents, other than routine, standard form documents, except with the lawyer’s knowledge and direction;
  14. perform any of the duties that only lawyers may perform or do things that lawyers themselves may not do; or
  15. issue statements of account.

Commentary
  1. A lawyer is responsible for any undertaking given or accepted and any trust condition accepted by a non-lawyer acting under his or her supervision.
  2. A lawyer should ensure that the non-lawyer is identified as such when communicating orally or in writing with clients, lawyers or public officials or with the public generally, whether within or outside the offices of the law firm of employment.
  3. In real estate transactions using a system for the electronic submission or registration of documents, a lawyer who approves the electronic registration of documents by a non-lawyer is responsible for the content of any document that contains the electronic signature of the non-lawyer.

Suspended or Disbarred Lawyers

6.1-4 Without the express approval of the Society, a lawyer must not retain, occupy office space with, use the services of, partner or associate with or employ in any capacity having to do with the practice of law any person who, in any jurisdiction, has been disbarred and struck off the Rolls, suspended, undertaken not to practise or who has been involved in disciplinary action and been permitted to resign and has not been reinstated or readmitted.

Electronic Registration of Documents

6.1-5 A lawyer who has personalized encrypted electronic access to any system for the electronic submission or registration of documents must not

  • permit others, including a non-lawyer employee, to use such access; or
  • disclose his or her password or access phrase or number to others.

6.1-6 When a non-lawyer employed by a lawyer has a personalized encrypted electronic access to any system for the electronic submission or registration of documents, the lawyer must ensure that the non-lawyer does not

  • permit others to use such access; or
  • disclose his or her password or access phrase or number to others.

Commentary
  1. The implementation of systems for the electronic registration of documents imposes special responsibilities on lawyers and others using the system. The integrity and security of the system is achieved, in part, by its maintaining a record of those using the system for any transactions. Statements professing compliance with law without registration of supporting documents may be made only by lawyers in good standing. It is, therefore, important that lawyers should maintain and ensure the security and the exclusively personal use of the personalized access code, diskettes, etc., used to access the system and the personalized access pass phrase or number.
  2. In a real estate practice, when it is permissible for a lawyer to delegate responsibilities to a non-lawyer who has such access, the lawyer should ensure that the non-lawyer maintains and understands the importance of maintaining the security of the system.

6.2 Students

Recruitment and Engagement Procedures

6.2-1 A lawyer must observe any procedures of the Society about the recruitment and engagement of articling or other students.

Duties of Principal

6.2-2 A lawyer acting as a principal to an articled clerk must provide the student with meaningful training and exposure to and involvement in work that will provide the student with knowledge and experience of the practical aspects of the law, together with an appreciation of the traditions and ethics of the profession.


Commentary
  1. A principal or supervising lawyer is responsible for the actions of articled clerks acting under his or her direction.

Duties of Articled Clerk

6.2-3 An articled clerk must act in good faith in fulfilling and discharging all the commitments and obligations arising from the articling experience.

6.3 Equality, Harassment and Discrimination

6.3-1 The principles of human rights laws and related case law apply to the interpretation of this rule.

6.3-2 A term used in this rule that is defined in human rights legislation has the same meaning as in the legislation.[1]

6.3-3 A lawyer must not sexually harass any person.

6.3-4 A lawyer must not engage in any other form of harassment of any person.

6.3-5 A lawyer must not discriminate against any person.[2]


[1] For the purpose of this Rule, the human rights legislation means any human rights legislation in force and effect in the jurisdiction at the time.

[2] This Rule does not preclude any program, activity or ameliorative program that has as its object the amelioration of conditions or disadvantages for individuals or groups including those who are disadvantaged because of a characteristic or perceived characteristic such as age, race, colour, religion, creed, sex, sexual orientation, disability, an irrational fear of contracting an illness or disease, ethnic, national or aboriginal origin, family status, marital status, source of income, political belief or affiliation, or an individual’s association with another individual or class of individuals having characteristics referred to above.