Duty to the Client

The Lawyer’s Duty to the Client

Compiled by Eric B. Appleby

Overview

In the text Legal Ethics by Mark M. Orkin, the author states at page 73 that until the beginning of the 19th century a lawyer “was justified in going to virtually any lengths on behalf of a client”. Today a lawyer’s support of a client’s cause must be tempered by the lawyer’s obligations as an officer of the court. Trial tactics that include “trial by ambush” have been discredited. The Manitoba Court of Appeal stated that … maximum disclosure in the interest of expeditious, economic and just resolution of disputes has replaced trial by ambush”. See Jobes v. Zolinski et al. (1999), 134 Man.R.(2d) 302; 139 W.A.C. 302 (C.A.), at para. 14.

In General

A lawyer’s duty to a client must be tempered by the lawyer’s duty to the courts and the administration of justice. In Myers v. Elman, [1940] A.C. 282 (H.L.), at page 307 the House of Lords stated that it is the lawyer’s duty to decline to act in any case where there exists an irreconcilable conflict between the lawyer’s duty to the court and the duty to the client. In the case of Couture v. Lamontagne (1996), 151 Sask.R. 283 (Q.B.), the court stated at para. 25: [25] “The decision of Millican v. Tiffin Holdings Ltd. (1965), 50 W.W.R.(N.S.) 673 (Alta. T.D.), at p. 674 is often quoted in regard to the standard of care required of a lawyer. At p. 674 this statement is made: The obligations of a lawyer are, I think, the following: (1) To be skillful and careful; (2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary; (3) To protect the interests of his client; (4) To carry out his instructions by all proper means; (5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him; (6) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria.

Duty to compromise and settle

A lawyer has a duty to encourage a client to compromise and settle a claim. See Professional Conduct for Lawyers and Judges by Beverley G. Smith, chapter 6, para. 5.

Duty of loyalty

In the case of R. v. Neil (D.L.) (2002), 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73 (S.C.C.), the Supreme Court of Canada discussed a lawyer’s duty of loyalty to an existing client – The court stated that the general prohibition [against acting against an existing client] is undoubtedly a major inconvenience to large law partnerships and especially to national firms with their proliferating offices in major centres across Canada. Conflict searches in the firm’s records may belatedly turn up files in another office a lawyer may not have been aware of. Indeed, he or she may not even be acquainted with the partner on the other side of the country who is in charge of the file. Conflict search procedures are often inefficient. Nevertheless it is the firm not just the individual lawyer, that owes a fiduciary duty to its clients, and a bright line is required. The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client, even if the two mandates are unrelated, unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. – See paragraph 29.

Duty of competence

In the case of Financeamerica Realty Ltd. v. Gillies (1983), 40 Nfld. & P.E.I.R. 169; 115 A.P.R. 169 (Nfld. C.A.), the headnote stated: The Newfoundland Court of Appeal stated that a solicitor will be liable if his error was one that the ordinary competent solicitor would not have made – See paragraph 5.

Duty to inform or advise client

In the case of Wong et al. v. 407527 Ont.ario Ltd. et al. (1999), 125 O.A.C. 101 (C.A.), the Ontario Court of Appeal stated that although ordinarily clients retain lawyers for legal advice not business advice, on some transactions the two are intermingled and no clear dividing line can be drawn. Thus, a lawyer may well have a duty to give advice on the financial or business aspects of a transaction, depending on the client’s instructions and sophistication, and on whether the client is relying on the lawyer for that kind of advice. – See paragraph 46.

In the case of R. v. Michelin (L.) (1999), 93 O.T.C. 385 (Gen. Div.), the court stated at paras. 34 and 35: [34] “The Rules of Professional Conduct specifically require a lawyer to keep his client informed and respond to client communication. Rule 2, commentary 8 gives various examples of conduct that does not meet the quality of service required of a barrister or solicitor. These include: commentary 8(a), failure to keep the client reasonably informed; commentary 8(c) unexplained failure to respond to the client’s telephone calls; and commentary 8(f) failure to answer within a reasonable time a communication that requires a reply.

[35] In my opinion, where the client faces serious criminal jeopardy and the client has only one telephone meeting with the lawyer, that lawyer’s failure to respond to the client’s telephone calls for two weeks prior to trial represents a breach of the lawyer’s professional duties.”

In the case of Bank of Nova Scotia v. Omni Construction Ltd. Telfer Investments Ltd., Schwartz, Bauer and Tufts (1983), 22 Sask.R. 161 (C.A.), in the presence of his lawyer a client signed a guarantee – The lawyer failed to make the client aware of what he was signing and the significance of the document – The Saskatchewan Court of Appeal affirmed that the lawyer was liable to the client for the client’s liability under the guarantee.

Duty to advise a client about business ethics

In the case of Holt, Renfrew & Co. v. Singer (Henry) Ltd., Pekarsky and Thompson & Dynes Ltd. (1982), 37 A.R. 90 (C.A.), the Court of Appeal stated at para. 110: “…. a solicitor has no duty to instruct his client in business ethics. If the client announces an intention which strikes the solicitor as dishonourable, the solicitor can do no more than quit the client.

Duty of confidentiality (professional secrecy)

A lawyer is required to keep confidential anything arising out of the client relationship. Exceptions include proposals of crime by a client.

In the case of Cummings et al. v. Anthony-Robinson et al. (1995), 176 A.R. 127 (Q.B.), the Alberta Court of Queen’s Bench stated that Persons who retain lawyers have a real expectation of as much confidentiality as is possible. For some clients, it may well be that the fact that they have retained a lawyer, and the fact that they have retained a specific law firm, are as confidential as the subject of the deliberations between them and their lawyer. Care should be taken by lawyers not to disclose the names of their clients unnecessarily”- See paragraph 12.

In the case of Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1995), 171 A.R. 241 (Q.B.), the Alberta Court of Queen’s Bench stated that it is settled law that a lawyer must not voluntarily disclose confidential information which he or she receives in a professional capacity without the consent of the client or a direction of the court – See paragraph 293.

In the case of Roberts v. Sodhi, [2003] O.T.C. 179 (Sup. Ct.), the Court of Ontario, Superior Court of Justice, stated at paras. 14 and 15: [14] Rule 2.03(1) of the Rules of Professional Conduct, Law Society of Upper Canada, provides that: “A lawyer shall at all times hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so”.

[15] The Commentary to Rule 2.03(1) of the Rules of Professional Conduct further provides that “This rule must be distinguished from the evidentiary rule of lawyer and client privilege concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge. “A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them”.

Beverley G. Smith states in chapter 2, para. 31, of Professional Conduct for Lawyers and Judges: [31] “There appear to be at least six instances where the very high duty of confidentiality may be abrogated by the lawyer. They are: (1) where the client expressly or impliedly authorizes the disclosure; (2) where the lawyer is seeking to establish or collect a fee; (3) where the lawyer is defending against an allegation by the client of malpractice or misconduct; (4) where the prevention of a crime justifies disclosure by the lawyer (and where the anticipated crime is one involving violence, disclosure is mandatory); (5) where disclosure is authorized by law; (6) where disclosure is authorized by order of a court of competent jurisdiction.”

Duty to a client in relation to conflicts of interest

For centuries it has been a well settled rule that no one can be an attorney for both sides even with the consent of the parties. For information on Duty to a client in relation to conflicts of interest, please click here.

Compensation to lawyer

In the case of compensation to lawyers in relation a number of duties (such as the duty to inform client, duty to keep time records, and others) see the entry about the compensation of lawyers.

Negligence of lawyers

In the case of lawyer negligence in relation a number of issues (such as the basis of its liability, error of judgment, considerations in determining liability, and others) see the entry about the General Negligence Liability of Lawyers.