legal ethics handbook - Nova Scotia Barristers' Society

LEGAL ETHICS HANDBOOK
Applied to a solicitor in a "very clear case where the solicitor has been guilty of misconduct'' and is "floundering in
a quagmire of ignorance and moral obliquity'' (he having, pending trial of an action and in anticipation of an
adverse outcome, advised his client to dispose of its property and, after verdict, taking an assignment of part of
that property). Centre Star Mining Co. v. Rossland Miners Union (1905), 11 B.C.R. 194, 1 W.L.R. 244 (C.A.).
See also L. Kocontes, "Client Confidentiality and the Crooked Client: Why Silence is not Golden." 6 Georgetown
J. Legal Ethics (1992-93), 283-318.
7. For example, to challenge the constitutionality of, the jurisdiction for or the applicability of a shop-closing by-law
or a licensing measure, or to determine the rights of a class or group having some common interest.
8. See also "Criminal Law May Not be Used to Collect Civil Debts'' (1968), 2:4 Gazette 36; K. Eaton, "Threats of
Criminal Prosecution" (Dec. 1977), 4:3 N.S.L.N. 1. See also Rex v. LeRoux (1928), 3 D.L.R. 688 (Ont. C.A.).
See also Legal Ethics Ruling 1994-6 (1): "It is unethical for a lawyer to seek to obtain an improper advantage or
benefit over another lawyer or that lawyer's client by threatening disciplinary action."
"The purpose of the rule is to prevent the criminal law from being used as a lever to enforce the payment of a civil
claim. The rule is concerned with professional conduct, and it is designed to ensure that the members of the
profession will not act in a way which is contrary to the best interest of the public, or of the legal profession, or in a
way which tends to harm the standing of the legal profession in public estimation." Wilson v. Law Society of British
Columbia (1986), 33 D.L.R. (4th) 572, 9 B.C.L.R. (2d) 260 (C.A.) See also Pearlman v. Law Society of Manitoba
Judicial Committee (1989), 62 D.L.R. (4th) 681, [1990] 1 W.W.R. 178 (C.A.); affd 84 D.L.R. (4th) 105, [1991] 2
S.C.R. 869.
9.The lawyer's advice is usually largely based on the lawyer's conception of relevant legal doctrine and its bearing
on the particular factual situation at hand. Anticipated reactions of courts, probative value of evidence, the desires
and resources of clients, and alternative courses of action are likely to have been considered and referred to. The
lawyer may indicate a preference and argue persuasively, or pose available alternatives in neutral terms. The
lawyer makes the law and legal processes meaningful to clients; the lawyer explains legal doctrines and practices
and their implications; the lawyer interprets both doctrines and impact. Often legal and non-legal issues are
intertwined. Much turns on whether the client wants a servant, a critic, a sounding board, a neutral evaluator of
ideas, reassurance, authority to strengthen his or her hand .... The real problem may be one, not of role conflict,
but of role definition. The lawyer may spot problems of which the client is unaware and call them to his attention.
(Summarized from Q. Johnstone and D. Hopson, Lawyers and Their Work: An Analysis of the Legal Profession in
the United States and England (Indianapolis: Bobbs-Merrill, 1967), at 78-81).
10. See T. Bastedo, "A Note on Lawyers' Malpractice'' (1970), 7 Osgoode Hall L.J. 311.
11. For a code of ethics dealing with this, see Lund, A20.
12. In private practice, withdrawal is understood to mean ceasing to act in a particular matter and does not
necessarily preclude a lawyer's continuing to act in other matters for the same client. Similarly, a lawyer employed
by a client may "withdraw" from a given matter by refusing to implement the client's instructions in that matter,
while continuing to advise the client in other respects.
In the case of a profound and fundamental disagreement between lawyer and client or a pervasive institutional
policy of illegality, withdrawal may also entail resignation. In most cases, however, a preferable approach is to
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