Lawyers

The lawyer’s duty to other lawyers

Compiled by Eric B. Appleby:

Overview

The lawyer’s relation to other lawyers is important to the administration of justice. This is because most civil claims are settled without a trial and a substantial number of criminal charges result in a guilty plea without a trial. Lawyers interacting with other lawyers produce out of court settlements in both criminal and civil cases.

General and notice of default proceedings

In the case of Thomas v. Keddy Motor Inns Ltd. (1992), 117 N.S.R.(2d) 420; 324 A.P.R. 420 (T.D.), the court referred to the duty of lawyers to act toward other lawyers with courtesy and good faith. The court stated at paras. 13 and 14: [13] “Counsel for the applicants, has brought to my attention the provision in the codified standard of ethics and practice, a code which applies to all members of the legal profession in Nova Scotia. Legal Ethics and Professional Conduct is the published standard of conduct adopted by the Nova Scotia Barristers’ Society in 1990. Chapter 13 of that booklet deals with the practitioner’s duties to other lawyers. The general rule is a lawyer has a duty to treat and deal with other lawyers courteously and in good faith. Some of the commentary on that rule reads as follows: 13.3 A lawyer has a duty to accede to a reasonable request for a trial date, an adjournment, a waiver of procedural formality and any similar matter that does not prejudice the rights of the client. A lawyer who knows that another lawyer has been consulted in a matter has a duty not to proceed by default in the matter without enquiry and warning. This standard is consistent with the expectation of the court in these circumstances.

[14] Due to her earlier waiver of the time to file the defence, plaintiff’s counsel should have issued a warning in these circumstances that she expected a defence to be filed by a specific date, a date which would provide defendants’ counsel a reasonable opportunity to prepare and file a defence. Because of that failure, it is appropriate that I exercise my discretion under rule 12.06 and set aside the default judgment. I also believe that counsel, in a situation where they have had dealings with opposing counsel, should not proceed with an ex parte default application without giving notice to opposing counsel.”

Requirement of courteous conduct

In the case of 615231 Saskatchewan Ltd. v. Schulz et al. (2002), 220 Sask.R. 43 (Q.B.), an applicant brought an ex parte application for leave to serve a notice of motion on the respondents requesting a summary order for possession of a condominium (Recovery of Possession of Land Act (Sask.), s. 3(1)) – It appeared from the applicant’s supporting affidavit that the respondents were likely represented by counsel – Queen’s Bench Rule 441A(c) required disclosure of legal counsel by an ex parte applicant – The Saskatchewan Court of Queen’s Bench refused to grant leave without at least some form of short notice to the respondents’ counsel given the spirit and intent of rule 441A – Professional courtesy required that counsel for an applicant provide some form of notice where it appeared that a respondent was represented by counsel – Counsel should bring an ex parte application against a party who was known to be represented by another lawyer only in exceptional circumstances – See paragraphs 2, 9 and 10.

Duty of successor lawyer to protect an outstanding account of the former lawyer

In the case of Franklin Service Co. v. Halifax (1977), 20 N.S.R.(2d) 306; 27 A.P.R. 306 (T.D.), the Nova Scotia Supreme Court, Trial Division, stated that it is proper and necessary for a successor lawyer to insist that the client take reasonable steps to secure an outstanding account of a former lawyer – See paragraph 23 – The Trial Division stated that while circumstances may make it unreasonable for a successor lawyer to insist upon payment of the outstanding account of a former lawyer, that the successor lawyer may properly insist that security be given by the client for payment of the former lawyer’s account – See paragraph 25.

Undertakings to other lawyers, enforcement

In the case of Regatta Investments Ltd. and Thullner v. Haig et al. (1985), 36 Man.R.(2d) 154 (Q.B.), the court stated at paras. 9 to 11: [9] “There is no question that the court does have inherent jurisdiction to enforce a solicitor’s undertaking. See Raman v. Him, [1980] A.C. 497, a decision of the Privy Council in England.

[10] There is also authority for the proposition that trust conditions imposed by one solicitor and accepted by the other, will be equated to an undertaking by the latter to comply with the conditions, unless those conditions are rejected by the receiving solicitor. See Witten, Vogel, Binder & Lyons v. Leung, Harwardt and MacPherson (1983), 46 A.R. 53; 148 D.L.R.(3d) 418 (Q.B.).

[11] Moreover, the performance of a solicitor’s undertaking may be enforced summarily. See Geoffrey Silver v. Baines, [1971] 1 All E.R. 473, per Denning, M.R., at p. 475 as follows: This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office … This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertakings. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings. It may be a simple undertaking to pay money, provided always that it is given ‘in his capacity as a solicitor’ … If such an undertaking is given, the court may summarily make an order on the solicitor to fulfil his undertaking … and, if he then fails to do so, the court may commit him to prison … This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case.”