The Advisory: Volume 9, Issue 2, August 2011

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Ethically Speaking

Alberta’s New Code of Conduct — What Do You Need to Know?

By Nancy Carruthers and Ross McLeod, QC, Practice Advisors, Law Society of Alberta

THE FEDERATION of Law Societies began work on a national Model Code of Conduct in 2004. The goal of the member law societies was to promote consistency in the ethical and professional standards of conduct for the legal profession across Canada.

When the Law Society of Alberta received the Federation’s draft Model Code in the fall of 2010, the Professional Responsibility Committee was assigned the task of reviewing it, prior to Bencher approval. The Committee attempted to make as few changes as possible. There were, however, certain Alberta practices and standards which have been carried forward in the new Alberta Code.

At first glance, the new Code obviously has a different format. Formerly, we had 15 distinct chapters. We will now have six chapters, though within these chapters the new Code covers the same subject matter. In most cases, the new Code will not change the ethical standards with which Alberta practitioners are already familiar.

New Code Provisions:

The following is a summary of new Code provisions of which practitioners should be aware.

  • New Rule 2.02(8) prohibits threats to initiate or proceed with criminal and quasi-criminal charges or complaints to any regulatory authority. The new rule is of more broad application than our existing rule, as we currently do not deal with threats to complain to regulatory authorities other than our own. This new rule simply extends the scope of what we already have, in a way which is consistent with accepted principles.
  • New Rule 2.02(9) prohibits a lawyer from compensating a third party in exchange for influencing the Crown or a regulatory authority in the conduct of a prosecution or complaint, without the consent of the Crown or regulator. Further, lawyers must not wrongly influence any person to prevent the Crown or a regulatory authority from proceeding with charges or a complaint, or to withdraw or stay them.
  • Rule 2.03(3) deals with the public safety exception to confidentiality. Chapter 7, Rule 8 (c) of our current Code provides that a lawyer must disclose confidential information when necessary to prevent a crime likely to result in death or bodily harm, and may disclose confidential information when necessary to prevent any other crime. Our new rule states that a lawyer may disclose confidential information when the lawyer believes, on reasonable grounds, that an identifiable person or group is in imminent danger of death or serious bodily harm, and the disclosure is necessary to prevent the death or harm.

There is no longer any discretion on the part of a lawyer to disclose confidential information to prevent crimes of less severity, which do not involve bodily harm.

  • Currently, Chapter 13, Rule 3, prohibits contingency fee agreements in matters involving criminal law, divorce or custody. There are no similar prohibitions in new Rule 2.06(2), which contemplates contingency fees. In addition, lawyers are not allowed to withdraw for reasons other than those with require obligatory withdrawal, unless the written contingency agreement states that the lawyer has a right to withdraw and sets out the circumstances under which withdrawal may occur. Lawyers are obliged to withdraw if discharged by the client, if not competent to continue, or if the client persists in instructing the lawyer to act contrary to professional ethics.
  • The rules relating to referral fees paid to other lawyers have changed. New Rule 2.06(6) does not allow referral fees to be paid between lawyers if the referral was made due to a conflict of interest. This restriction does not exist in our current Code.
  • The new Code deals specifically with withdrawal of counsel in criminal matters, in a manner consistent with the relatively new Supreme Court of Canada decision in R. v. Cunningham, [2010] 1 S.C.R. 331. A lawyer may withdraw for non-payment of fees, or other adequate reasons, if the interval between withdrawal and the trial is sufficient to enable the client to find another lawyer and to allow the new lawyer time to prepare.
  • Rule 4.04(2) deals with communication with witnesses while they are under oath in a more complete way than our existing Code. The new rule provides as follows:
    • During examination-in-chief, the examining lawyer may discuss any matter with the witness;
    • During cross-examination of the lawyer’s own witness, the lawyer must not, without the direction of the tribunal, discuss with the witness the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief;
    • On the conclusion of cross-examination and during re-examination the lawyer may, unless the tribunal directs otherwise, discuss with the witness any matter.
  • Rule 4.05 contains six subrules dealing with relations with jurors, all of which are new to Alberta.
  • Previously, a lawyer’s obligations when dealing with unrepresented parties were found in Chapter 1, in the commentary to Rule 6, and in Chapter 11, Rule 5, dealing with negotiations. The obligations of a lawyer dealing with an unrepresented party are now consolidated and expanded in Rule 6.02(11), and apply at any step in a file or matter. Lawyers are to advise an unrepresented opposing party that the lawyer is not representing that person and to advise the person to seek independent counsel. A lawyer must also take care to ensure the opposing party is not under the impression that the lawyer is protecting his or her interests.

Watch for future articles about the new Code in upcoming editions of the Advisory. We welcome any inquiries or comments about the new Code of Conduct.

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