A lawyer must not discriminate against, harass or sexually harass any person (Rules 6.3-1 to 6.3-3 of the Code). Rule 6.3-4 of the Code prohibits a lawyer from engaging or participating in a reprisal against someone who has inquired about their rights or been involved in any effort to address discrimination or harassment. The prohibitions on discrimination and harassment in Rules 6.1-6.3 of the Code apply to conduct within and outside of the lawyer’s office or legal practice.

The principles of relevant human rights and workplace health and safety laws apply to the interpretation of Rules 6.1- 6.4 of the Code. Accordingly, a lawyer must stay apprised of developments in the law pertaining to discrimination and harassment.

The Equity Ombudsperson and the Practice Advisors are available for confidential advice to help prevent or address discrimination and harassment. The team has training in intentional inclusivity, unconscious bias, trauma-informed decision making, violence threat assessment and first response to sexual assault and abuse.

In addition to offering advice and support, the Equity Ombudsperson assesses whether a student meets the criteria for the Articling Placement Program, that involves an emergency removal from an article in which the student is facing discrimination or harassment. The Law Society recognizes that reporting discrimination or harassment can be challenging. To help empower people facing discrimination or harassment to report, the Law Society has a safe reporting process for members of the profession and for the public.

Rule 7.2-4 of the Code prohibits a lawyer from using any device to record a conversation between the lawyer and a client or another lawyer without first informing the other person of the lawyer’s intent to record. A conversation includes in-person meetings, telephone conversations and videoconferences. The client or other lawyer’s knowledge is necessary even if the recording is otherwise lawful. In this respect, a lawyer may be held to a higher standard under the Code of Conduct than that imposed by privacy legislation.

Although it is a best practice, Rule 7.2-4 does not require consent. A lawyer may record a conversation provided each person being recorded is aware of the intent to record. However, it is prudent to obtain a written acknowledgement prior to recording.

Ideally, everyone can agree in writing prior to the meeting that it will be recorded. That explicit agreement should be included on the lawyer’s file. If a situation arises during the meeting that the attendees agree necessitates recording, that agreement should be made clear at the beginning of the recording. If another lawyer or participant in the conversation objects to the recording, the lawyer should consider the objection carefully to determine whether it would be appropriate to proceed with recording in the circumstances. A lawyer should not record a conversation with their client if the client objects.

Situations can arise where one lawyer begins recording a meeting or proceeding and the opposing lawyer does not consent to it, but circumstances require that the meeting continue. The objecting lawyer should consider applying to the court after the meeting to have the recording deleted, and for costs.

Rule 7.2-4 rose to prominence as people shifted to greater reliance on telephone and online meetings, court appearances, questionings and mediations. Before clicking the record button in any virtual or telephone meeting, a lawyer should obtain clear consent to the recording from each person in the meeting.

Rule 7.2-4 of the Code also applies to regular telephone conversations. Without confirming the other party’s knowledge of the recording, lawyers must not record telephone calls. A party’s advance consent or acknowledgement should be maintained on the lawyer’s file.

A lawyer’s duty to report another lawyer to the Law Society arises under Rule 7.1-3 of the Code. It must be balanced with a potential breach of solicitor-client privilege and other legal requirements.

In some instances, the duty to report is clear: When another lawyer has misappropriated trust funds, abandoned their law practice or participated in criminal activity related to the lawyer’s practice, a lawyer must report the other lawyer to the Law Society.

In other instances, it is not always clear whether another lawyer’s conduct requires reporting. The lawyer’s conduct must be reported when it raises a “substantial question” as to the honesty, trustworthiness or competency of the lawyer, when it raises a “substantial question” about the lawyer’s capacity to provide legal services, or when the lawyer’s clients are likely to be “materially prejudiced” by the lawyer’s conduct.

Rule 7.1-3’s underpinning is that unless a lawyer’s departure from professional conduct is “checked at an early stage, loss or damage to clients and others may ensue” (Commentary [1]). Minor breaches may be symptomatic of more serious issues in that lawyer’s practice. Where a lawyer is uncertain about having to report another lawyer, they should speak with a colleague or Practice Advisor.

Rules 3.2-11 and 5.2-1(t) prohibit a lawyer from threatening to make a complaint to a regulator, or to lay, initiate or proceed with a criminal charge, in an attempt to gain a benefit for a client in a civil matter. In some cases, settlement offers are accompanied by threats either to report the opposing party to the police, or to report opposing counsel to the Law Society for alleged misconduct. Some lawyers are surprised to learn that including such a threat as an inducement to settle is a breach of the Code.

A lawyer can report criminal or quasi-criminal activities to authorities while a related matter is in litigation or settlement discussions. A lawyer may also raise concerns as part of gathering information when considering reporting. If the lawyer feels obliged to report, they should do so. However, it is a breach of the Code if the threat itself is being used as an inducement to settle or obtain a civil remedy.

A lawyer can discuss concerns about another lawyer’s conduct with that lawyer, and request that the other lawyer comply with their professional obligations or face being reported to the Law Society. A professional conversation about a perceived breach may help to restore ethical behaviour and efficiently protect clients’ interests.

This is often the case where a lawyer has a concern about a breach of an undertaking or trust condition. Ideally, a conversation between the lawyers should lead to compliance and efficient enforcement of the client’s rights. If the conversation is not productive, a lawyer should strongly consider reporting the other lawyer so that compliance with the trust condition or undertaking can be appropriately assessed.

In some circumstances a lawyer has a duty to report themself to the Law Society. This duty must be balanced against the right against self-incrimination. The Practice Advisors recommend that lawyers contact them when uncertain about their obligation to self-report. Sometimes the obligation is clear; at other times a confidential conversation can help assess if a lawyer should self-report.

The Rules of the Law Society of Alberta, Rule 119.42, requires that a lawyer, visiting lawyer, articling student or applicant for admission or readmission to the Law Society immediately report to the firm’s responsible lawyer if they are subject to bankruptcy proceedings, or if they have been served with a writ of execution. The firm’s responsible lawyer must immediately provide notice to the Law Society. The report is to ensure the safety of trust funds to which the lawyer may have access.

Rule 105 requires that a lawyer, visiting lawyer, articling student or applicant for admission or readmission report to the Law Society any criminal or regulatory charges. The report must be made within a reasonable time after the charge is laid or after an investigation begins. The lawyer must subsequently advise the Law Society of the outcome of the charge or investigation.

A lawyer in private practice must maintain professional liability and misappropriation indemnity coverage through Alberta Lawyers Indemnity Association (ALIA). Rule 7.7-2 of the Code requires a lawyer to give prompt notice to ALIA of any circumstance that may give rise to a claim. Similarly, the ALIA Group Policy requires that all claims and any circumstance that could reasonably be expected to give rise to a claim, however unmeritorious, must be reported to ALIA as soon as practicable, and during the policy period in which the lawyer first becomes aware of the claim or circumstance. There is no coverage for late reported claims or potential claims unless the lawyer establishes that the late notice has not prejudiced ALIA.

Further details regarding the ALIA Group Policy, the Universal Cyber Coverage Program and other important information is available on the ALIA website.

Often, a lawyer providing notice to ALIA will also need to report to their client. Rule 7.7-1 of the Code requires that lawyers promptly inform their clients of material errors or omissions that may be damaging to the client. The notification to the client must be prompt, must recommend independent legal advice, and must advise the client that the lawyer may not be able to act for the client going forward. The lawyer should be candid about the circumstances without admitting liability.

The Practice Advisors are available to discuss how best to meet the requirements of Rule 7.7-1 in the context of specific errors or omissions.

A lawyer’s trust condition or undertaking can serve a critical role in securing a client’s rights. Rule 7.2-14 of the Code empowers reliance on trust conditions and undertakings. A lawyer must fulfill every undertaking given and honour every trust condition they accept.

Trust conditions and undertakings should be clear, unambiguous and in writing. Once a lawyer has given an undertaking or accepted a trust condition, the lawyer is personally bound to fulfil it. A lawyer who makes use of materials sent under trust conditions will be deemed to have accepted them.

Accordingly, on receipt of materials sent under trust conditions a lawyer must scrutinize the terms of the trust conditions. The lawyer should consider whether each trust condition is consistent with the parties’ agreement, is something within the lawyer’s power to fulfil, and the timeline and commitment is clear. If any of these elements is missing the lawyer should immediately contact the person imposing the trust condition (typically another lawyer) and request a variation. If agreement on variation cannot be reached promptly the lawyer should send the materials back.

Disputes between lawyers concerning trust conditions may be discussed in an informal, non-binding mediation session with the Practice Advisors. The Practice Advisors may request that both lawyers submit a summary of the issue(s) and barriers to resolution.

A lawyer who is disbarred or suspended may seek to work in fields that are law-related, or even in a law office. Section 108 of the Legal Profession Act requires approval from the Benchers before a law firm may engage a suspended or disbarred lawyer to work as an employee or contractor. The lawyer seeking to employ a lawyer who is disbarred or suspended must apply to the Benchers for a resolution authorizing the employment, which may be subject to conditions.

A lawyer who employs a lawyer who is disbarred or suspended without first obtaining a Benchers’ resolution authorizing the employment may face penalties.

A lawyer, articling student or other law office staff member with questions about the Code requirements discussed above or other ethical and practice management concerns can contact the Practice Advisors for confidential advice.