legal ethics handbook - Nova Scotia Barristers' Society

LEGAL ETHICS HANDBOOK
"A practising lawyer, by the very fact that he practices, holds himself out as having the knowledge, skill and
judgment of a lawyer. He knows that a client consults him for that reason, and by undertaking work for the client
he impliedly undertakes to have and apply the knowledge, skill and judgment necessary for the work. If he does
not have it and does not intend to get it, he is in automatic and immediate breach of an ethical duty to the client."
(W.H. Hurlburt, "Incompetent Service and Professional Responsibility" (1980) 18 Alta. L. Rev. 145 at 149.)
"Competence in the context of these duties of course means more than formal qualification to practise law, and
involves more than an understanding of legal principles. Clients are entitled to expect that a lawyer who
undertakes a particular matter on their behalf is either competent to handle the matter or is able to become
competent without undue delay, risk or expense to the client. The rules of professional conduct make it clear that
lawyers who proceed on any other basis are not being honest with their clients, and that this raises ethical
considerations to be distinguished from the standard of care that a court would apply for purposes of determining
negligence." (Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline, looseleaf
(Toronto: Carswell, 2001) at 24-1.)
"There is, then, on principle and on the authority of the Code and its approval by governing bodies, an ethical duty
of competence and diligence, and a standard of competence based upon the expectation of lawyers generally."
(Hurlburt, supra at 150.)
See SK C.2 for a competence profile for newly called lawyers.
See Regulation 9.1.3(b) of the Legal Profession Act, S.N.S. 2004, c.28 for a list of factors constituting professional
incompetence.
2. "Competence is ... a measure of both capacity to perform and performance itself. The
lawyer must be able to carry out lawyering functions with a requisite degree of knowledge and skill; and he or she
must also be willing to perform such functions honestly, and completely, and on time." (Leon E. Trakman, ed.,
Professional Competence and the Law, Dalhousie Continuing Education Series, no. 21 (Halifax: Dalhousie
University Faculty of Law, 1981) at 3.)
"Believe in yourself and the honourable character of your work: master the facts and have a thorough
understanding of the legal principles: prepare every case with the greatest care: make sure that nothing is
omitted: try to learn as much about your opponent's case as possible if you will be relying upon a legal authority,
have the text in full available to the Court." (Lund at 35.)
See also Beverley G. Smith, Professional Conduct for Canadian Lawyers (Toronto: Butterworths, 2002) at c.2 for
standards of competence.
3. See www.nsbs.ns.ca/cpd.htm for information on Continuing Professional Development. Continuing
Professional Development provides ongoing legal education for its members.
4. "The conduct of any trial, in any forum, from a small claims action to a full jury trial, is a formidable challenge
and requires the highest order of legal skills. Consider all that is required in order to be successful in trial work."
(Lee Stuesser, An Advocacy Primer, 3d ed. (Toronto: Carswell, 2005) at 1.)
5. "Ensure that the expectations of the client are met. If the client has a realistic understanding of what's going to
be involved, what has to be done, the possible results, and what it will likely cost, then you have the basis for a
good relationship. You should put as much importance on managing the relationship as you do on providing the
service." (John R. Merrick, "Cultivating the Client Relationship" (2003) 21:5 Society Record 8 at 8.)
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