legal ethics handbook - Nova Scotia Barristers' Society

LEGAL ETHICS HANDBOOK
4.19 In such cases, the lawyer's duties to the party for whom the independent advice or representation is required
are the same as in any other lawyer-client relationship.
Dealings with unrepresented persons 11
4.20 The lawyer should not undertake to advise an unrepresented person, but should urge such a person to
obtain independent legal advice and, if the unrepresented person does not do so, the lawyer must take care to
see that such person is not proceeding under the impression that the lawyer is protecting such person's interests.
If the unrepresented person requests the lawyer to advise or act in the matter, the lawyer should be governed by
the considerations outlined in the Rule relating to impartiality and conflict of interest between clients. The lawyer
may have an obligation to a person whom the lawyer does not represent, whether or not such person is
represented by a lawyer.
Dishonesty or fraud by client organization
4.21 A lawyer, acting for an organization, who learns that the organization, or an employee or agent on behalf of
the organization, is engaging in or contemplating dishonesty, fraud or illegal conduct, should take appropriate
action. This may include
(a) following a procedure prescribed by the organization;
(b) explaining the nature of the activity to
(i) the employees or agents involved, and
(ii) the person with whom the lawyer normally deals advising of the reasons why the lawyer
recommends the activity should not be pursued, and outlining the consequences to the
organization, the employees or agents, and to the lawyer which could result from the activity;
and
(c) if the issue is not resolved after the lawyer takes the action suggested in (a) and (b), then, depending
upon the circumstances, it may be appropriate for the lawyer to
(i) provide in writing the same advice which was given orally,
(ii) advise as to the steps to be taken by the lawyer if this conduct is not stopped or suitably
abated,
(iii) inform the person's immediate superior, describing the nature of conduct, its potential
consequences, and the action already taken by the lawyer, and
(iv) provide advice in writing to a senior member of management, and thereafter, if
necessary, to the chair and an outside member of the Board of Directors, or the Minister
in case of a lawyer working in government, and include with such advice the information
and correspondence already provided.
4.22 If a lawyer, after taking reasonable action to discourage such activity receives instructions that would involve
breaching the duties in this Handbook, dishonesty, fraud or illegal conduct, the lawyer is under a duty to withdraw
from the representation of the organization in the particular matter. 12
Notes
1. For codes of ethics dealing with this, see Lund, A10. Also see M.M. Orkin, Legal Ethics: A Study of
Professional Conduct (Toronto: Cartwright & Sons Ltd., 1957) at 78-79 and B.G. Smith, Professional Conduct for
Canadian Lawyers (Toronto: Butterworths, 1989) at 46.
2. "He [a lawyer] has an obligation before giving advice to fully acquaint himself with the facts of the case and an
obligation to give candid and honest advice ...'' Maple Leaf Enterprises Ltd. v. Mackay (1980), 42 N.S.R. (2d) 60
at 65, per Hallett J. (T.D.).
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