Chapter 1: Regulating the Legal Professions

1. The Law Society of Ontario

1.1 Introduction

 The Law Society of Ontario (formerly the Law Society of Upper Canada) was created in 1797
as a self-governing body.
 It governs Ontario’s legal professions in the “public interest.”
 People who meet the standards for competence and good character can get licenses to
practise law (lawyers) or provide legal services (lawyers and paralegals).
 The Law Society’s work can be divided into four main areas:
1. Convocation and management.
2. Education, licensing, and professional development.
3. Professional regulation.
4. Resources and support for lawyers, paralegals, and the public.

1.2 Convocation and Management

 The Law Society is managed by a board of directors called “benchers.”

 Benchers are mostly elected by licensees, with some appointed by the Lieutenant Governor
in Council.
 Benchers meet monthly at “Convocation” to decide policies and oversee legal professions.
 Benchers can be lawyers, paralegals, or members of the public.
 Benchers also serve on committees and hear discipline cases about licensees’ conduct,
competence, or licensing.
 The Law Society’s head, the “Treasurer,” is elected by voting benchers and leads
Convocation.
 The CEO manages staff and day-to-day operations.

1.3 Education, Licensing, and Professional Development

 The Professional Development and Competence Division (PD&C) provides education,

practice resources, and support to lawyers and paralegals.
 PD&C ensures lawyers and paralegals serve the public competently.
 It oversees:
1. The licensing process.
2. Continuing professional development (CPD).
3. Practice resources like the Great Library, Practice Management Helpline, and
Coach and Advisor Network.
 PD&C also runs remedial programs, including spot audits and practice reviews, to address
competence issues.

1.4 Professional Regulation

  The Professional Regulation Division (PRD) handles regulatory complaints and issues.
 It develops policies to protect the public and improve access to justice.
 PRD’s main activities include:
o Handling complaints.
o Investigations and discipline prosecutions.
o Monitoring and enforcing orders.
 PRD also provides trustee services and manages the Unclaimed Trust Fund and
Compensation Fund.

1.5 Support to Lawyers, Paralegals, and the Public

 The Client Service Centre (CSC) handles public and licensee inquiries.
o Its Call Centre receives most Law Society inquiries.
o It also manages licensee fees, annual filings, and by-law applications.
 The External Relations and Communications Division handles public affairs, media inquiries,
and publications.

2. Regulating the Legal Professions in the Public Interest

2.1 Overview

 A profession requires extensive training and mastery of specialized knowledge.

 Governing bodies regulate professions by overseeing licensing, ethical standards, and
conduct.
 Practising law or providing legal services is a privilege with responsibilities.
 Lawyers must follow the Rules of Professional Conduct (Rules), which outline required
ethical standards.
 Failing to follow these standards may lead to complaints, investigations, and possible
disciplinary action by the Law Society.

2.2 Terminology

 “Law Society” = Law Society of Ontario.

  “Lawyer” = A person licensed to practise law or provide legal services in Ontario, including
candidates in the licensing process.
 “Legal practitioner” = A lawyer or paralegal licensed in Ontario or a lawyer licensed in
another Canadian jurisdiction.
 “Legal professions” = Lawyers and paralegals who practise law or provide legal services.
 “Licensee” = A lawyer or paralegal licensed in Ontario.
 “Paralegal” = A person licensed to provide legal services in Ontario.
 “Tribunal” = Any body that resolves disputes, including courts, boards, and mediators.
 Terms like “shall” or “must” indicate mandatory instructions, while “should” and “may”
indicate recommendations or discretionary actions.

2.3 The Rules of Professional Conduct

 The Law Society makes rules to govern the conduct of lawyers and paralegals in Ontario.
 Benchers create and approve the rules, which are divided into seven chapters:
1. Citation and Interpretation: Defines key terms in the Rules.
2. Integrity: Explains the responsibilities and ethical standards for lawyers.
3. Relationship to Clients: Covers client-related issues like competence,
confidentiality, conflicts of interest, and fees.
4. Practice of Law: Discusses marketing, advertising, and service delivery.
5. Relationship to Administration of Justice: Explains duties when acting as
advocates or mediators, including witness and juror interactions.
6. Relationship to Students, Employees, and Others: Covers supervision of non-
lawyers and human rights responsibilities.
7. Relationship to the Law Society and Other Lawyers: Covers responsibilities to the
Law Society and other professionals, including reporting misconduct.
 Lawyers must comply with the Rules, even if they personally disagree with them.
 If faced with an ethical issue, lawyers should:
1. Identify the issue.
2. Review applicable rules and laws.
3. List and evaluate options.
4. Seek guidance (e.g., Practice Management Helpline).
5. Document their decision and actions.
 Non-compliance with the Rules can harm clients and discredit the legal profession, resulting
in disciplinary actions.

2.4 Competence and Professional Development

 The Law Society helps lawyers and paralegals stay competent through CPD programs and
resources.
 These programs cover law, Law Society rules, and practice management techniques.
 The Practice Management Helpline offers confidential advice on rules and practice
management.
 The Coach and Advisor Network connects licensees with coaches and advisors for support.
 The Practice Audits Department conducts spot audits and practice reviews to ensure
compliance with financial and management standards.

2.5 Complaints, Investigations, and Discipline

 Complaints must be submitted in writing to the Law Society.

 The Intake and Resolution Department reviews complaints and resolves minor issues
informally.
 Serious allegations are referred to Investigation Services, which may:
1. Close the matter.
 2. Refer it to the Proceedings Authorization Committee (PAC).
3. Transfer it to Litigation Services.
 Hearing panels can discipline lawyers and paralegals by:

o Suspending or revoking their license.

o Delivering oral or written reprimand
o Requiring CPD or practice reviews.
o Restricting practice areas or supervision.
o Imposing fines or refunds.
o Ordering counselling or treatment.

 Licensees can appeal hearing decisions to an appeal panel or the Divisional Court.
 If the Law Society takes action, the lawyer or paralegal will be notified and must respond.
 Failure to cooperate with the Law Society is a breach of the Rules and may lead to further
discipline.
 Most complaints are resolved without a formal hearing, but any discipline becomes part of the
licensee’s public record.

Chapter 2: Professionalism

1. Standards of the Legal Professions

1.1 Definition of Professionalism

 Professionalism is not always easy to define, but unprofessional behavior is easy to spot.
 A professional lawyer works effectively with a positive attitude and takes responsibility
for their actions.
 They behave appropriately in all situations and set an example for others in the profession.

1.2 Professional Obligations

 Under the Rules of Professional Conduct (Rules), lawyers must uphold the standards and
reputation of the legal professions.
 They must act with integrity, civility, courtesy, and good faith.
 Lawyers are encouraged to engage in community activities that benefit the profession.
 They must respect human rights laws, recognize Ontario’s diverse community, and ensure
equality, diversity, and inclusion in their services and workplaces.

2. Integrity (Rule 2.1-1 and Commentary)

2.1 Definition and Importance

  Lawyers must act with honour and integrity in their professional duties and personal lives.
 Without integrity, trust between the lawyer and client is lost, no matter how competent the
lawyer may be.
 A lack of integrity harms the reputation of the legal profession and the justice system.

2.2 Key Expectations

 Lawyers must serve the public in ways that inspire confidence and trust.
 They must avoid any appearance of dishonesty or unethical conduct.

3. Courtesy, Civility, and Good Faith (Rules 5.1-5 and 7.2-1 and Commentary)

3.1 Professional Interactions

 Lawyers must be courteous, civil, and act in good faith when interacting with others,
including clients, colleagues, staff, tribunal officers, and Law Society representatives.
 This applies in all professional settings, such as courts, tribunals, and dispute resolution
forums.

3.2 Unacceptable Behavior

 Rude, disruptive, or abusive behavior by a lawyer may harm the administration of justice
and may constitute professional misconduct.
 Ill-mannered behavior can also hurt a client’s case and affect a lawyer’s ability to perform
their duties competently.

4. Advancement of the Legal Professions (Rule 2.1-2 and Commentary)

4.1 Ways to Contribute

 Lawyers are encouraged to share knowledge with colleagues and students through informal
mentoring, writing, teaching, or speaking at seminars.
 They may participate in legal aid, pro bono work, or community legal services.
 Lawyers can hold elected or volunteer positions with the Law Society, legal associations, or
charitable organizations.

4.2 Caution

 Lawyers involved in community activities should be mindful of creating the impression

that they are providing legal advice or forming lawyer-client relationships.

5. Lawyers and Ontario Human Rights Laws (Rule 2.1-1, Commentary, and Sections 6.3–6.3.1)

5.1 Diversity and Human Rights

  Lawyers have a special responsibility to recognize and respect Ontario’s diversity and human
rights laws.
 The Ontario Human Rights Code OHRC (Code) prohibits discrimination in areas like
services (including legal services), housing, and employment.

5.2 Prohibited Grounds for Discrimination

 The Code protects against discrimination based on:

o Race, colour, or creed.
o Citizenship, ancestry, or place of origin.
o Gender, gender identity, or sexual orientation.
o Disability (physical or mental).
o Age, marital status, or family status.
o Receipt of public assistance (in housing).

5.3 Lawyers’ Responsibilities

 Lawyers must not discriminate or harass clients, colleagues, or employees.

 Employment practices and workplace conduct must comply with the Code.

5.1 Discrimination (Section 6.3.1 and Commentary)

5.1.1 Definition

 Discrimination is treating someone unfairly based on a prohibited ground under the Code.
 It is the impact, not the intent, of the behavior that determines discrimination.

5.1.2 Types of Discrimination

1. Direct Discrimination: Explicit unfair treatment of a protected group.

2. Indirect/Adverse Impact: A neutral rule or policy that disadvantages a protected group.
Lawyers must accommodate these groups unless doing so causes undue hardship.
3. Systemic Discrimination: Discrimination built into social systems, practices, or policies
that benefit dominant groups.

5.2 Harassment (Section 6.3 and Commentary, Rule 6.3.1-1)

5.2.1 Definition

 Harassment is a pattern of vexatious conduct or comments that are unwelcome.

 Sexual harassment includes unwelcome sexual advances, comments, or actions.

5.2.2 Examples of Harassment

 Sexist jokes, offensive language, or unwelcome comments about someone’s personal life.
 Unwanted physical contact or repeated unwelcome attention.
 Creating a hostile or intimidating work environment.
5.3 Employment Practices (Rule 6.3.1-3 and Commentary)

5.3.1 Employer Responsibilities

 Lawyers must ensure their employment practices meet professional standards and comply
with Ontario’s human rights and workplace safety laws.

5.3.2 Occupational Health and Safety Act (OHSA)

 Lawyers with six or more employees must create and post workplace violence and
harassment policies.
 Policies must be reviewed annually, and risks assessed.
 Programs must be developed to prevent and address workplace violence and harassment.

6. Cultural Competence

6.1 Role of Cultural Competence

 Lawyers must recognize that systemic discrimination and inequality affect many
communities.
 Public trust in the justice system requires fairness and inclusion.
 Cultural competence helps lawyers understand the diverse perspectives of their clients
and avoid biases.

6.2 Definition of Cultural Competence

 Cultural competence is the ability to communicate and interact effectively with people of
different cultures.
 It involves understanding social differences like race, gender, religion, and economic
background.

6.3 Impact on Legal Practice

 Cultural competence helps lawyers:

o Build trust with clients.
o Avoid misunderstandings or misjudgments.
o Adapt their practices to provide inclusive services.

6.4 Skills for Cultural Competence

Cultural competence includes the ability to:

1. Understand how culture shapes individuals and societies.

2. Be self-aware of one’s own privilege or bias.
 3. Identify similarities and differences with others.
4. Recognize a client’s cultural context.
5. Understand how power and privilege shape relationships and practices.
6. Respect human rights.
7. Adapt practices to create inclusive legal services and workplaces.

Cultural competence ensures lawyers meet their ethical duties under the Rules, such as integrity,
civility, and non-discrimination, which are discussed in other sections.

6.3 Cultural Competence and the Lawyer-Client Relationship

Cultural competence helps lawyers understand and address issues like power, privilege, unconscious
bias, microaggressions, and cultural homophily, ensuring these factors do not harm the lawyer-
client relationship or advocacy.

Key Concepts:

1. Power:
o Certain groups dominate socially, politically, economically, and culturally, while
others are marginalized.
o Power is reflected in institutions and systems that reinforce the advantages of
dominant groups.
2. Relative Power:
o Social norms often reflect the experiences of dominant groups, while other groups
are labeled as "different" or "other."
3. Privilege:
o Privilege refers to unearned advantages and opportunities that members of dominant
groups enjoy.
o These advantages exist due to social, political, and economic dominance.
4. Dominant Social Group:
o This group benefits from systemic power and privilege supported by cultural,
political, and economic institutions.
o The dominant group may not necessarily be the numerical majority.
5. Dominant Culture:
o The norms, values, customs, language, and practices of the dominant group are
treated as societal standards.
o Institutions reinforce the dominance of this culture.
6. Unconscious Bias:
o These are automatic judgments based on traits like race, gender, or age, shaped by
personal background and experiences.
o Unconscious biases influence decision-making without conscious awareness.
7. Microaggressions:
o These are everyday comments, behaviors, or actions that signal hostility or
exclusion to non-dominant groups.
o Examples include assuming racialized lawyers are interpreters or asking someone
repeatedly, "Where are you really from?"
8. Microaffirmations:
o These are small, intentional actions to create inclusivity, such as learning to
pronounce a client’s name correctly or ensuring holidays from various cultures are
considered when scheduling meetings.
9. Cultural Homophily:
o This refers to the tendency to associate with people who are similar to oneself.
o It can create barriers to inclusivity in legal practice and service delivery.
6.4 Culturally Competent Legal Practice

Recognizing Social Differences and Similarities

 Lawyers should actively identify differences and similarities with clients and others.
 Differences can lead to misunderstandings if lawyers fail to listen carefully or assume
familiarity.
 Similarities can also cause issues if lawyers project their own values or judgments onto
clients without understanding their unique needs.

Cross-Cultural Communication

 Lawyers must recognize that their legal knowledge and experience represent a form of
privilege.
 Legal processes may feel unfamiliar or alienating to clients, especially those from
marginalized groups.
 Lawyers need to communicate effectively about legal culture and processes while
addressing barriers their clients face.

Strategies for Culturally Competent Practice

 Proactively learn about cultural protocols and accommodations.

 Seek guidance from experienced colleagues or authoritative sources.
 Respectfully ask clients about their needs and preferences when unsure about appropriate
conduct.

7. Equality

Substantive Equality

 Lawyers must deliver "substantive equality," which focuses on the real impact of laws,
practices, and actions.
 Treating everyone the same (formal equality) may reinforce existing inequalities.
 Substantive equality recognizes that different treatment may be required to achieve
fairness.

Examples of Substantive Equality:

 Physically accessible spaces that allow all individuals to enter with dignity, rather than
requiring those with disabilities to use separate entrances.
 Systems and practices designed to accommodate the diversity of human experiences,
ensuring equal access and participation.

Legal Standard: Withler v. Canada (Attorney General)

 The Supreme Court of Canada emphasizes focusing on the actual impact of practices,
considering historical, social, and economic factors that affect marginalized groups.
 8. Inclusion and Diversity

Key Differences:

1. Diversity:
o Refers to the representation of people from different backgrounds within an
organization or group.
o It measures "who is present." Its quantitative
2. Inclusion:
o Refers to creating an environment where all individuals can thrive.
o It measures "how people experience the environment." Its qualitative

Inclusive Practices:

 Lawyers should in their workplace or services.

 Examples include:
o Ensuring equal access to quality work and mentorship for all employees, regardless of
gender, race, or other factors.
o Hosting inclusive events that are not centered around alcohol

8.1 Inclusive Client Service

Delivering Quality Service

 Inclusive client service ensures all clients receive equal quality and treatment in their legal
experiences.
 Diverse perspectives in legal practice improve service quality and make the profession more
welcoming for all clients.

Examples of Inclusive Client Service:

 Physical Accessibility: Operate from premises accessible to all clients.

  Training: Ensure partners and staff are trained in cultural competence and working with
interpreters.
 Dietary Considerations: Provide food that suits a variety of dietary needs.
 Communication: Use plain language, visual aids, and other tools to make legal concepts
accessible.
 Accommodations: Proactively ask clients about their accommodation needs (e.g., scheduling
around holidays or health conditions).

Proactive Accommodation:

 Offering accommodations reduces stigma and normalizes inclusive practices.

 Examples of accommodations include:
o Large print or machine-readable materials for clients with low vision.
o Flexible scheduling to accommodate physical or mental health needs.
o Reliable interpretation and translation services.

Duty to Accommodate:

 Lawyers have a legal duty under the Ontario Human Rights Code to accommodate clients
up to the point of undue hardship.

By embedding cultural competence and inclusivity into their practice, lawyers meet their obligations
to protect the public interest and ensure fair access to justice.

8.2 Inclusive Workplaces

1. Building Inclusive Workplaces

o Lawyers, as employers, must ensure their workplaces are free of discrimination.
o Workplaces should have policies and practices that allow all employees to succeed
without facing barriers.
o Lawyers must address discriminatory or harassing behavior if they receive
complaints or suspect such behavior is happening.

2. Key Areas Requiring Inclusion

o Recruitment, mentorship, access to work, support from legal staff, and promotions are
critical points in a lawyer's career where inclusive practices are essential.
o Lawyers from equity-seeking groups often face challenges in these areas.

3. Examples of Barriers
o Unconscious Bias and Cultural Homophily:
 Hiring committees may favor applicants similar to existing members.
 Senior lawyers may mentor those with similar cultural backgrounds,
neglecting others.
  Lawyers from equity-seeking groups may face higher scrutiny and
criticism than others, leading to the “working twice as hard for half as
much” phenomenon.
o Workplace Culture:
 Equity-seeking lawyers may feel pressured to hide aspects of themselves
to fit in, which is emotionally draining and limits their potential.
 Social and business development events centered on activities like golf,
hockey, or alcohol may exclude lawyers from equity-seeking groups.

o Cultural Differences:
 Firms that value extroversion and self-promotion may misjudge lawyers
from cultures that emphasize deference, listening, and collective success.
o Microaggressions:
 These everyday slights alienate and isolate non-dominant groups, causing
emotional exhaustion.
 Lawyers who address microaggressions may be unfairly labeled as
“difficult.”
o Family and Parenthood:
 Practices that fail to accommodate pregnancy, parenthood, or caregiving
responsibilities disproportionately harm women and lawyers from cultures
that prioritize family obligations.

8.3 Inclusive Legal Practice

1. Beyond Client Service and Workplaces

o Lawyers must apply principles of inclusion and cultural competence to all aspects of
their practice.
o This includes interactions with witnesses, other lawyers, judges, tribunal staff, and
even the media.

2. Marketing Practices
o Lawyers’ marketing must comply with Ontario’s human rights laws (as required
under Rule 4.2-1).

9. Equity Initiatives, Strategies, and Resources

1. Best Practices and Model Policies

o The Law Society has created policies to help lawyers promote equity and diversity in
their practices.
o These policies cover areas such as:
 Fair hiring practices.
 Preventing and addressing workplace harassment, discrimination, and
violence.
 Promoting equity and diversity in workplaces.
 Complying with accessibility standards.
 Workplace accommodations and flexible work arrangements.
 Creed, religious beliefs, gender identity, sexual orientation, and disabilities.
 2. Law Society Resources
o Continuing Professional Development (CPD) programs and resources on equality,
diversity, and inclusion are available.
o More information can be found on the Law Society’s website.

9.1 Working Together for Change

1. Findings on Systemic Racism
o Studies show , articling students, and lawyers from equity-seeking groups face
direct, indirect, and systemic discrimination.
o These issues affect key areas like law school, hiring, access to work, mentoring,
promotions, and partnership opportunities.
2. Law Society’s Response
o The Working Together for Change report (2016) led to strategies aimed at:
 Creating inclusive workplaces.
 Reducing barriers caused by racism, unconscious bias, and discrimination.
 Increasing representation of racialized licensees in the legal professions.
3. Obligations for Lawyers
o Lawyers must:
 Acknowledge in their annual report their duty to respect human rights
laws and avoid discrimination.
 Meet CPD requirements on equality, diversity, and inclusion topics.
4. Obligations for Legal Workplaces (10 or More Licensees)
o Workplaces must:
 Develop, implement, and review a human rights/diversity policy.
 Complete an equality, diversity, and inclusion self-assessment every two
years.
5. Further Information
o Detailed obligations and resources are available on the Law Society’s website.

10. Discrimination and Harassment Counsel (DHC) Program

1. Purpose of the DHC Program
o The DHC Program helps individuals who experience or witness discrimination or
harassment by a lawyer or paralegal in Ontario.
o The service is free and available to:
 The public, law and paralegal students, articling students, legal staff,
lawyers, and paralegals.
2. Services Provided
o The DHC offers confidential support and explains options for recourse, which may
include:
 Filing a complaint with the Law Society.
 Filing an application with the Human Rights Tribunal of Ontario.
 Mediating a resolution in some cases, if all parties agree.
3. Independence and Confidentiality
o The DHC Program is funded by the Law Society but operates independently.
o All services are strictly confidential.
4. Accessing the DHC Program
o More information is available on the DHC website: [Link]/dhc.

CHAPTER 3
1. Duty to the Client

1.1 Overview of Responsibilities

 A lawyer's most important duty is to provide quality legal services to the client.
 This includes being competent, maintaining confidentiality, avoiding conflicts of interest,
and continuing representation unless there is good cause to withdraw.
 Lawyers must also handle fees, billing, and client property appropriately.

1.2 Importance of Identifying the Client

 Lawyers must always know who the client is to fulfill their duties under the Rules of
Professional Conduct (Rules).
 Without clear identification of the client, lawyers may face confusion about who they
represent and whose instructions they should follow.

1.3 How to Identify the Client

 Lawyers must determine if a lawyer-client relationship exists and who will provide
instructions.
 They must comply with By-Law 7.1 by:
o Collecting identifying information about the client when providing services.
o Verifying the client’s identity when dealing with financial transactions like the
transfer of funds.
 The client’s name should be included in a retainer agreement or engagement letter.
 A non-engagement letter should identify who is not a client, if applicable.

1. Definition of Client

1.1 Prospective Client

 A "prospective client" is anyone seeking advice or assistance that requires the lawyer’s
professional knowledge, even if no formal agreement has been made.
 Prospective clients may share confidential information to determine whether to retain the
lawyer or if the lawyer can act.
 Lawyers have a duty to protect the prospective client’s confidentiality and avoid conflicts
of interest, even if the client does not retain them.
 These duties arise as soon as the prospective client contacts the lawyer and continue
indefinitely.

1.2 Lawyer-Client Relationship

 A “client” is a person who:

o Consults a lawyer and receives or expects to receive legal services.
o Reasonably believes the lawyer has agreed to provide legal services.
 A lawyer-client relationship may be created even in informal settings, such as social
gatherings, if legal advice is provided.
 Lawyers must clearly communicate whether or not they have been retained to avoid
misunderstandings.
1.3 Firm Clients
 The Rules define "client" to include clients of any lawyer in the same firm.
  Lawyers owe duties of confidentiality and loyalty to all firm clients.
 Firms must have systems to screen for conflicts of interest before taking on new clients.

2. Determining Who is the Client

2.1 Joint Clients
 A "joint retainer" occurs when a lawyer represents two or more clients in the same matter.
 Lawyers must ensure:
o No conflicts of interest exist before accepting joint clients.
o All clients understand that no information shared with the lawyer will be kept
confidential from the others.
o If a conflict arises between the clients, the lawyer may need to withdraw.
 Written consent from all joint clients is required before proceeding.
 The lawyer must clarify who will provide instructions on behalf of the joint clients and
confirm this in writing.
2.2 Authorized Representatives
 When working with a client who cannot provide instructions (e.g., due to diminished
capacity), the lawyer must identify the client’s authorized representative (e.g., guardian or
power of attorney).
 The lawyer must confirm in writing who will provide instructions.
2.3 Third Parties
 A client may involve third parties (e.g., friends or family) in meetings, or a third party may
pay for legal services.
 Lawyers should meet privately with the client to confirm instructions and clarify the third
party’s role.
 Any directions regarding the third party should be documented in writing.
2.4 Organizations
 When acting for an organization, the lawyer must determine who is authorized to give
instructions (e.g., officers or directors).
 This should be documented in a retainer agreement, and any changes to authorization
should also be confirmed in writing.
 If a lawyer represents both the organization and an individual within the organization,
the lawyer must check for conflicts of interest and comply with joint retainer rules.
2.5 Limited Scope Retainers
 A limited scope retainer involves the lawyer providing services for part of a legal matter
or performing a specific task.
 Before accepting a limited scope retainer, the lawyer must:
o Ensure they can provide competent services under the arrangement.
o Clearly define and document the scope of the services in writing.
 Limited scope clients are owed the same duties of competence, confidentiality, and conflict
avoidance as other clients.
2.6 Unrepresented Parties
 When dealing with an unrepresented party, lawyers must:
o Make it clear that the lawyer is acting only in their client’s interests.
o Ensure the unrepresented party does not mistakenly believe the lawyer is
protecting their interests.
o Encourage the unrepresented party to seek ILA.
o Document the steps taken to clarify these roles and confirm them in writing.

3. Client Identification and Verification Requirements (By-Law 7.1)

3. Purpose of Identification and Verification
 Lawyers must conduct due diligence to avoid involvement in illegal activities like money
laundering or fraud.
 Identification: Obtaining basic information about the client (e.g., name and address).
  Verification: Confirming the client’s identity, especially in financial transactions involving
funds.
3.1 When Identification is Required
 Lawyers must identify clients or third parties whenever they are retained to provide legal
services.
 The information obtained must be recorded, including the date it was collected.
3.1.1 Required Information for Individuals
 If the client or third party is an individual, the lawyer must obtain:
o Full name.
o Home address and phone number.
o Occupation(s).
o Business address and phone number (if applicable).
3.1.2 Required Information for Organizations

 If the client or third party is an organization, the lawyer must obtain:

o Full name of the organization.
o Business address and phone number.
o Name, position, and contact information of the individual authorized to give
instructions.
o (If applicable) Incorporation or business identification number, place of issuance, and
the nature of the business.

3.2 When Verification is Required

 Lawyers must verify the client’s identity when handling financial transactions involving
funds.
 Verification requires authentic, valid, and current documents, which must be copied and
retained.

Exemptions to Identification and Verification

 Exemptions exist for:

o Certain licensees (e.g., in-house counsel).
o Certain funds (e.g., payments to or from public bodies).
o Certain clients or third parties (e.g., financial institutions).
 Lawyers should review By-Law 7.1 to confirm if exemptions apply.
3.2.1 Verifying Identity When the Client or Third Party is an Individual (By-Law 7.1, ss. 22(1)
(b), 23(4)–(5), and (7)–(10))

To verify the identity of an individual client or third party, lawyers must use one of the following
methods:

1. Government-Issued Photo ID Method

o Review the individual’s government-issued photo identification (e.g., driver’s license,
passport).
o Municipal-issued IDs and health card numbers cannot be used.
o A health card can be shown voluntarily for identification purposes, but lawyers
cannot record, use, or note the health card number.
2. Credit-File Method
o Obtain and review the individual’s credit file that is based in Canada and has
existed for at least three years.
3. Dual-Process Method
o Request and review two pieces of information from different reliable sources, such
as:
 Information containing the individual’s name and address.
 Information containing the individual’s name and date of birth.
  Information confirming the individual has a deposit account, credit card,
or loan with a financial institution.
o Reliable sources must be well-known, reputable organizations, such as utility
companies or banks.
4. Virtual Verification with Authentication Method
o Use video conferencing or other virtual tools to meet with the individual.
o Authenticate the individual’s identification document remotely, ensuring it is
valid and current.
o Example: Compare the ID against known security features or markers using
technology.
o Note: As of January 1, 2024, lawyers cannot verify identity by viewing a client
and their ID virtually without authentication.
5. Using an Agent
o Lawyers may use an agent to verify identity.
o The lawyer must enter a written agreement with the agent and ensure the information
provided is valid and current.
6. Timing of Verification
o Lawyers must verify identity immediately after engaging in or giving instructions
regarding a financial transaction.
o Best Practice: Verify identity before or at the time of the first transaction.
7. Additional Steps for Minors
o Additional verification steps apply for individuals under 12 years old or between the
ages of 12 and 15.

3.2.2 Verifying Identity When the Client or Third Party is an Organization (By-Law 7.1, ss.
22(1)(b), 23(4), and (6)–(7))

1. General Requirements
o When representing an organization in a financial transaction, lawyers must verify
the organization’s identity and the identity of any individual giving instructions
on behalf of the organization.
o Individual instructions must be verified using the same methods as for individuals.
2. Corporations or Registered Organizations
o Lawyers must obtain written confirmation of the organization’s existence, name,
and address from a government registry.
o Examples include:
 A certificate of corporate status.
 Annual filings from the corporation.
 Similar records confirming the organization’s existence.
3. Unregistered Organizations
o For trusts, partnerships, or other unregistered organizations, lawyers must obtain
constating documents such as:
 Trust or partnership agreements.
 Articles of association or similar records confirming the organization’s
existence.

4. Timing of Verification
o Lawyers must verify an organization’s identity immediately and no later than 30
days after the first transaction.
 o Best Practice: Verify identity before or at the time of the first transaction.

3.2.3 Additional Identifying Information for Organizations (By-Law 7.1, ss. 23(2.1), (2.2), and
(12.1)–(12.2))

1. Additional Information to Collect

o Lawyers must collect:
 The names of the organization’s directors (unless it is a securities dealer).
 The names and addresses of individuals who own 25% or more of the
organization or its shares.
 For trusts, the names and addresses of all trustees, beneficiaries, and
settlors.
 Information on the organization’s ownership, control, and structure.
2. Verification and Recording
o Lawyers must:
 Record all identifying information and the date it was obtained.
 Take reasonable steps to confirm the accuracy of the information and
record those measures.
o If the lawyer cannot obtain or confirm the information, they must:
 Identify the most senior managing officer of the organization.
 Ensure the client’s activities, source of funds, and instructions align with
the purpose of the retainer.
 Assess if there is a risk of fraud or illegal conduct and document the
results.

3.3 Verifying Identity Using an Agent (By-Law 7.1, s. 23(11))

1. When to Use an Agent

o Lawyers may use an agent to verify a client’s identity if the client is outside
Canada or the lawyer cannot meet the client face-to-face.
o Before the agent acts, the lawyer must enter into a written agreement with the
agent.
2. Agent’s Role and Verification
o The agent must follow By-Law 7.1 requirements for verification.
o The lawyer must ensure the information provided by the agent is valid, current,
and compliant.
3. Best Practice
o Lawyers should ask the agent to complete an attestation.
o A sample agent letter and attestation form are available on the Law Society’s website.

3.4 Previous Identification and Verification (By-Law 7.1, ss. 23(2.3), (11), and (12))

1. When Previous Verification Applies

o A lawyer does not need to re-verify a client’s identity if:
 The lawyer previously verified the identity and has no reason to believe the
information has changed.
  A colleague or employee at the lawyer’s firm has already completed the
verification.
 An agent previously verified the identity under an agreement.
2. Best Practice
o Lawyers should confirm that previously collected information remains valid and
accurate.

3.5 Source-of-Funds Information (By-Law 7.1, ss. 23(2) and (12.1))

1. Definition of Source of Funds

o Lawyers must determine the origin of the funds used in a financial transaction (e.g.,
how the funds were earned or where they came from).
2. Recording Requirements
o Lawyers must record all information about the source of funds and the date it was
obtained.

3.6 Monitoring Obligations (By-Law 7.1, s. 23.1)

1. Ongoing Monitoring
o Lawyers must periodically review their professional relationship with the client
to:
 Ensure the client’s activities, funds, and instructions align with the
retainer’s purpose.
 Assess the risk of fraud or illegal conduct.
2. Recording Obligations
o Lawyers must document all measures taken, the information obtained, and the
date.

3.7 Record Retention (By-Law 7.1, ss. 23(12.1)–(15))

1. Retention Requirements
o Lawyers must keep records of all identifying and verification information,
including copies of documents used.
o Records must be kept for:
 The duration of the client relationship, plus as long as necessary to provide
services.
 At least six years after completing the matter.
2. Electronic Records
o Records can be stored electronically if paper copies can be easily produced.

3.8 Withdrawal Obligations (By-Law 7.1, s. 24)

1. When Withdrawal is Required

 o A lawyer must withdraw if they know or suspect that the client is engaging in
fraud or illegal activity.
o If the lawyer cannot prevent involvement in the illegal activity, they must stop
acting for the client.
2. Related Rules
o Lawyers must also withdraw if a client insists on dishonest, fraudulent, or illegal
conduct despite the lawyer’s advice.
o Withdrawal is discussed further in Chapter 10 (Withdrawal from Representation).

Chapter 4: Competence

Overview

 Clients hire lawyers because they lack the knowledge or skills to handle legal matters
themselves.
 Lawyers are expected to be knowledgeable, skilled, and capable.
 Clients have the right to assume their lawyer is competent to handle their legal matters
and meet their goals.
 Incompetence harms the client, damages the lawyer’s reputation, and negatively impacts the
legal profession and justice system.
 Lawyers must meet and maintain competence standards as set out in s. 41 of the Law Society
Act (the Act) and the Rules of Professional Conduct (the Rules).

1. Required Standard of Competence

1.1 Definition of Competence (Rules 3.1-1 to 3.1-2 and Commentary)

  Lawyers must provide legal services at the standard of a competent lawyer.
 A competent lawyer has and applies relevant knowledge, skills, and attributes in an
appropriate manner.
 Competence includes delivering services that are courteous, thorough, efficient, diligent,
civil, and respectful.

1.2 Key Areas of Competence

 Knowledge of the law.

 Skills to complete tasks.
 Sound judgment.
 Effective client service and communication.
 Proper practice management.
 Ongoing professional development.

1.3 Responsibilities of a Competent Lawyer

 Lawyers should not take on a matter unless they are competent or can become competent
without causing delay, risk, or expense to the client.
 Factors to assess competence:
o Complexity of the matter.
o Lawyer’s general experience.
o Training or experience in the relevant area.
o Time and preparation available to handle the matter.
o Feasibility of consulting or collaborating with a more experienced lawyer or non-
legal expert.

1.4 Options for Addressing Incompetence

 If a lawyer cannot competently handle a matter, they must:

o Decline to act for the client.
o Obtain the client’s consent to consult or collaborate with another competent licensee.
o Obtain the client’s consent to gain competence without delay, risk, or extra cost.
 Lawyers must withdraw from the matter if they cannot provide competent representation.

1.1 Technological Competence (Rule 3.1-2)

 Lawyers must understand and use relevant technology in their practice.

 Lawyers must know the risks and benefits of technology to protect client confidentiality
and fulfill their duties.
 The level of technological competence depends on:
o The lawyer’s practice area.
o The location of the practice.
o Client requirements.
 Example: In virtual hearings, lawyers must know how to use videoconferencing platforms.

1.2 Knowledge
  Lawyers must know general legal principles and procedures, as well as the substantive law
relevant to their practice areas.
 If learning a new area of law would cause delay or risk to the client, the lawyer should decline
the matter.
 Competent lawyers:
o Investigate facts.
o Identify issues.
o Understand client goals.
o Explore options.
o Advise clients on the best course of action.
 Lawyers must verify facts, gather necessary information, and provide advice based on a
solid understanding of the client’s matter.
 Lawyers should assess their competence on an ongoing basis and consider alternatives like
consulting experts or withdrawing from the matter if they cannot meet the required standard.

1.3 Skills

 Lawyers may need various skills to meet client objectives, such as:
o Legal research.
o Analysis and application of law to facts.
o Drafting and writing.
o Negotiation.
o Advocacy and alternative dispute resolution.
o Problem-solving.
 Lawyers must assess their skills before agreeing to represent a client.

1.4 Judgment

 Lawyers must apply judgment, intellectual capacity, and deliberation when providing
services.
 Competent judgment includes:
o Understanding legal concepts and facts.
o Considering all options and consequences.
o Providing practical advice to help clients make informed decisions.
 Lawyers must also apply judgment to their own conduct, ensuring they comply with the Law
Society Act and other professional requirements.

1.5 Client Service and Communication

 Effective communication with clients is a critical part of competence.

 Lawyers must adapt communication methods to:
o The nature of the retainer.
o The client’s needs and level of understanding.
o The need for informed client decisions.
 Lawyers should:
o Keep clients informed at all stages of the matter.
 o Use appropriate communication tools while explaining any risks.
o Avoid giving unreasonable or over-confident assurances.

Managing Client Expectations

 Many complaints arise because lawyers fail to manage client expectations.

 Lawyers must:
o Clarify what tasks will be performed, when they will be done, and at what cost.
o Update clients if their expectations change or become unrealistic.
o Confirm any new instructions or changes in writing.

Retainer Agreements

 Lawyers should provide a written agreement that outlines:

o Legal services to be provided.
o Expected results.
o Costs and timelines.
o Circumstances under which the lawyer may not follow the client’s instructions.

1.6 Cultural Competence

 Cultural competence is a skill that supports effective communication and quality service.
 Lawyers should understand cultural differences and address barriers to build trust and serve
clients better.
 This is discussed further in Chapter 2 (Professionalism).

1.7 Practice Management

 Good practice management ensures lawyers provide timely, cost-effective services.

 Lawyers must manage:
o Staff: Using workplace policies and procedures.
o Time: Using planning tools and docketing systems.
o Finances: Using proper billing, money handling, and record-keeping systems.
o Client Information: Using filing and storage systems, including conflict-checking
systems.
 Tools like checklists, forms, and templates can help minimize errors and improve efficiency.

1.8 Professional Development

1.8.1 Ongoing Education

 Lawyers must stay updated on laws, rules, and best practices.

 Professional development is a cycle of:
o Assessment.
o Education or training.
o Reassessment.
CPD Requirements

 Lawyers must complete one hour of Continuing Professional Development (CPD) for every
month they practise in a year (12 hours for a full year).
 At least three hours must cover professionalism topics, including ethics, practice
management, or equality, diversity, and inclusion (EDI).

Equality, Diversity, and Inclusion Training

 Lawyers must complete at least one professionalism hour per year on EDI topics.
 EDI training must extend to all law office personnel to ensure culturally competent services.

1.9 Civil Society Organizations (CSOs)

 Lawyers can provide legal services to the public through CSOs, such as registered charities
or not-for-profit organizations, if the requirements of By-Law 7 are met.
 Lawyers must:
o Maintain full control over legal services.
o Act in the client’s best interests.
o Protect confidentiality and avoid conflicts of interest.
 For more information, see Chapters 8 (Fees and Disbursements) and 14 (Accounting and
Bookkeeping).

2. Quality of Service

 The quality of service goes beyond competence and includes being:

o Timely: Meeting deadlines and handling matters promptly.
o Conscientious: Providing thorough and efficient services.
o Civil: Treating clients with respect and courtesy.

Managing Deadlines and Communication

 Lawyers must meet deadlines unless a valid reason exists and ensure no harm comes to the
client as a result.
 Regular communication and updates are essential, even when there are no new
developments.
 For more, see Chapter 9 (Managing the Client Relationship).
Chapter 5: Confidentiality

To provide competent legal services, lawyers need all relevant information from the client. Lawyers
must maintain full confidentiality so that clients feel secure in sharing any information, even if it
seems irrelevant. Confidentiality ensures open communication between the lawyer and client, which
is critical to the lawyer’s duties of loyalty and effective representation.

1. Confidentiality Versus Privilege

1.1 Distinction Between Confidentiality and Privilege

 Privilege:
o A legal rule that protects oral or written communications between a lawyer and
client.
o Allows lawyers to withhold information from third parties, courts, or
investigations.
o Protected under constitutional law.
 Confidentiality:
o Broader than privilege.
o Covers all information a lawyer obtains during the professional relationship,
regardless of its source or whether others know it.
o Applies to all aspects of a client’s business or affairs.
o Privileged information is a subset of confidential information.

2. The Duty of Confidentiality

2.1 Scope of the Duty (Rule 3.3-1)

 Lawyers must keep all client-related information confidential, regardless of:

o The source of the information.
o Whether the information is public or known by others.
 Lawyers should discourage third parties (e.g., friends, family, business associates) from
attending client meetings to avoid risks such as:
o Loss of confidentiality.
o Loss of privilege.
o Confusion over who the lawyer represents.
 Lawyers must inform clients about the risks of sharing confidential information with
others.

2.2 Exceptions to Confidentiality

 Confidentiality is not absolute.

  Lawyers must disclose confidential information when:
o Required by law or tribunal order.
o Required by the Law Society.
 Lawyers may disclose confidential information in limited circumstances allowed by the
Rules.

2.3 Information Covered by Confidentiality

 All client information obtained during the professional relationship must be protected,
including:
o Verbal statements.
o Documents (paper or electronic).
o Emails, video, or audio recordings.
o The client’s papers or property.
 Even a client’s identity is confidential unless disclosure is necessary (e.g., filing court
documents).

2.4 When Confidentiality Begins and How Long It Lasts

 Confidentiality starts when a person first contacts the lawyer or the lawyer’s office, even if
no retainer is signed.
 The duty lasts indefinitely, even after:
o The professional relationship ends.
o The client dies.

2.5 Duty to All Clients and Firm Responsibility

 The duty of confidentiality applies to all clients, including:

o Current clients.
o Prospective clients.
o Former clients.
 Lawyers must ensure their firm (including employees) understands and follows
confidentiality rules.
 Lawyers are responsible for breaches caused by employees or others they engage.

2.6 Confidentiality for Civil Society Organizations (CSOs)

 Lawyers providing services through a CSO must:

o Protect client information, even from the CSO or its employees.
o Inform the CSO about confidentiality obligations.
o Only disclose information with the client’s informed consent or as required by
law.

3. Disclosure with Client Authority

3.1 Express and Implied Authorization

 Lawyers may disclose confidential information if:

o The client gives express authorization, ideally in writing.
 o The client’s authority to disclose is implied by the retainer (e.g., sharing
information with experts or filing necessary documents).
 If disclosure is authorized after the retainer begins, the lawyer should confirm this
authorization in writing.

4. Disclosure Without Client Authority

4.1 Situations Requiring Disclosure by Law (Rules 3.3-1 to 3.3-1.1)

 Lawyers must disclose confidential information when:

o Required by law.
o Ordered by a tribunal or court.
o Required by the Law Society.
 Lawyers must:
o Disclose only the information required.
o Assert privilege on the client’s behalf, if applicable.
o Seek legal advice if unsure about the obligation to disclose.
o Inform the client about the disclosure and its legal basis.

4.2 Permitted Disclosure to Prevent Death or Serious Bodily Harm (Rule 3.3-3)

 Lawyers may disclose confidential information if:

o They have reasonable grounds to believe there is an imminent risk of death or
serious bodily harm.
o Disclosure is necessary to prevent the harm.
 Disclosure must be limited to the information required to prevent the harm.
 Lawyers should consider factors such as the likelihood and imminence of harm.

4.3 Permitted Disclosure for Other Reasons

 Lawyers may disclose confidential information in certain other situations, such as:
o Defending themselves against allegations or claims.
o Establishing or collecting fees.
o Seeking legal advice about their own conduct.
o Resolving conflicts of interest.
 Disclosure must be limited to the necessary information.
 Lawyers should document the steps taken and consult the Rules before acting.

4.4 Disclosure to Establish or Collect Fees

 Lawyers may disclose client information to collect unpaid fees.

 They must limit disclosure to necessary information and redact unrelated confidential details.

4.5 Disclosure for Legal Advice on Lawyer’s Conduct

 Lawyers may share client information with another lawyer to seek legal advice about their
own professional obligations.
 Disclosure must only involve information necessary for obtaining the legal opinion.

4.6 Disclosure to Detect and Resolve Conflicts of Interest

  Lawyers may disclose limited client information when:
o Changing firms.
o Merging with or selling a practice.
 Disclosure must:
o Be limited to necessary information (e.g., client names).
o Not compromise client confidentiality or privilege without consent.
 Substantive discussions about the new relationship should occur before any disclosure.

5. Best Practices for Handling Confidential Information

5.1 Preventing Unauthorized Disclosure

 Lawyers should implement office procedures to protect confidentiality, including:

o Secure storage of client files and information.
o Educating staff on confidentiality obligations.
o Using clear communication with clients about confidentiality risks (e.g., sharing
advice with third parties).

5.2 Responding to Demands for Disclosure

 If faced with a demand for confidential information, lawyers should:

o Determine if a legal obligation exists.
o Seek legal advice if uncertain.
o Record details of any disclosures made, including:
 The grounds for disclosure.
 The information disclosed.
 The recipient of the disclosure.

5.3 Client Consent

 If disclosure is not legally required, lawyers must:

o Inform the client of the request for information.
o Advise the client on their rights and consequences of disclosure.
o Obtain written instructions from the client before acting.

6. Other Obligations Related to Confidential Information

6.1 “Whistleblowing”

 When working with an organization, the lawyer’s duty of confidentiality is owed to the
organization itself—not its employees or officers.
 If the lawyer knows the organization is engaging in illegal or fraudulent conduct, the lawyer
must:
o Notify those responsible in the organization to stop the conduct.
o Withdraw from representation if the conduct continues.
o Avoid disclosing the misconduct to outside parties unless required by law.

6.2 Security at Court Facilities

  If a lawyer reasonably believes a dangerous situation may occur at a court facility, they must
notify security personnel.
 The lawyer must not disclose confidential information unless permitted by law or with
client consent.
 Lawyers may suggest solutions, such as increased security, without revealing confidential
details.

6.3 Duty to Report Misconduct

 If a lawyer learns about another licensee’s misconduct while representing a client, the
lawyer must report it to the Law Society unless doing so would breach privilege.
 Reports must be made without malice or ulterior motive.
 Lawyers should seek advice if unsure about whether to report misconduct.

7. Prohibited Use of Client Information

7.1 Using Client Information Improperly

 Lawyers must not use client information for purposes outside the client’s retainer,
including:
o To harm the client.
o For the lawyer’s own benefit.
o To benefit another client or third party.

7.2 Writing and Publishing

 Lawyers cannot disclose confidential client information in any written or published work
without the client’s consent.
 This applies to all types of media, including books, articles, or online posts.

7.3 Public and Office Discussions

 Lawyers must not discuss client matters in public, including:

o Conversations in social settings or over the phone.
o Leaving client documents visible in public or shared spaces.
 Lawyers working in shared or remote offices must have systems to protect confidential
information.

7.4 Protecting Electronic Information

 Confidentiality applies to all client information, including data stored electronically.

 Lawyers crossing international borders with electronic devices should take steps to
prevent unauthorized searches or disclosures, such as:
o Using secure devices.
o Minimizing stored client data during travel.
o Developing policies for cross-border travel with confidential information.

Summary
The duty of confidentiality is central to the lawyer-client relationship. Lawyers must protect all
client information, ensure their firm follows confidentiality rules, and disclose information only in
specific, lawful circumstances. Client consent should be sought whenever possible, and all
disclosures must be limited to the information required. Proper communication with clients and
clear documentation are critical to fulfilling confidentiality obligations.

Chapter 6: Conflicts of Interest

1. Definition of “Conflict of Interest”

A conflict of interest happens when there is a real chance that a lawyer’s loyalty to or work for a
client could be negatively affected by the lawyer’s own interests or duties to another client,
former client, or third party.

 A client might not know if the lawyer’s duties are compromised.

 Even well-meaning lawyers might not notice that their work is being affected.
 The rule focuses on the risk of harm, not the harm itself.
 The term "substantial risk" means the risk is serious and likely, not just possible.
2. Recognizing Conflicts of Interest

A lawyer must recognize situations where a conflict may arise.

 Conflicts can happen when the lawyer has competing duties to different parties.
 Lawyers have a duty of loyalty, confidentiality, honesty, and commitment to their clients.
 Conflicts often occur when a lawyer has information about one client that they cannot
share with another client who needs it.
 Conflicts can also happen because of the lawyer’s personal interests, like financial ties or
close relationships with clients.

3. Avoiding Conflicts of Interest

A lawyer must not act for a client if there is a conflict of interest unless allowed by specific rules.

 If a conflict arises, the lawyer may need to refuse the case or stop representing the client.
 Lawyers must check for conflicts at the start and throughout the case.
 Conflicts can come from duties to other clients, former clients, or third parties, as well as
the lawyer’s personal interests.

4. Handling Conflicts of Interest

4.1 Consent

A lawyer may act despite a conflict if all affected clients agree.

 The lawyer must believe they can represent each client fairly.
 Consent must be informed, voluntary, and preferably in writing.
 The lawyer should explain the risks and how the conflict might affect the client.

4.1.1 Advance Consent

Clients may agree in advance to future conflicts, but they must understand the risks.

 General, open-ended consent is not valid.

 Sometimes, lawyers should advise clients to get independent legal advice before agreeing.

4.2 Independent Legal Advice

In some cases, clients should get advice from another lawyer who is not involved in the case.

 ILA ensures the client understands the decision they are making.
 ILR means hiring another lawyer to act on the client’s behalf.

4.3 Refusing or Withdrawing Representation

If a conflict cannot be resolved, the lawyer must refuse the case or withdraw from it.

 For example, a lawyer cannot represent both sides in a dispute.

5. Conflicts with Current Clients

5.1 Disputes Between Clients

A lawyer cannot represent clients on opposite sides of a dispute.

 Even with consent, loyalty and fairness would be compromised.

5.2 Acting Against a Client’s Interests

The "bright-line rule" says a lawyer cannot act against a current client’s interests without consent.

 This applies even if the cases are unrelated.

 Acting against a client can harm trust and the lawyer-client relationship.

By following these rules, lawyers ensure fairness and protect their professional duties.

6. Acting Against Former Clients — Rules 3.4-10–3.4-11 and Commentaries

 Lawyers must stay loyal to former clients even after the retainer ends.
 The duty of confidentiality lasts forever and might conflict with the duty to be honest
with current clients if old confidential information is relevant.
 Lawyers cannot act against a former client in the same or related matters, even if
confidentiality isn’t at risk.
 Before taking on a new client, lawyers should check if their actions would go against a
former client.
 The rules only allow lawyers to act against former clients in specific situations.

6.1 Same or Related Matters

 A lawyer cannot act against a former client in the same or a related matter unless the former
client agrees.
 Example: If a client ends a retainer mid-matter, the lawyer cannot act against them in that
matter without consent.

6.2 New Matters

 A lawyer cannot act against a former client in a new matter if they have confidential
information that could harm the former client.
 Exceptions:
o The former client agrees.
o The lawyer’s partner or associate can act if the former client agrees.
o The lawyer’s firm takes steps to ensure no confidential information is shared with
the lawyer handling the new matter.
 A lawyer can act against a former client in a new, unrelated matter if the old confidential
information is irrelevant.

7. Joint Retainers — Rules 3.4-5–3.4-9 and Commentaries

 Lawyers may represent more than one client in a joint retainer if their interests align.
 Before accepting, the lawyer must check if conflicts might arise.
 If disagreements or conflicting interests are likely, the lawyer should not take the joint
retainer.
7.1 Advice to Joint Clients, Informed Consent

 Before agreeing to act, the lawyer must inform all clients that:
o They are acting for everyone involved.
o Information from one client won’t be confidential from the others.
o If conflicts arise, the lawyer may need to stop acting for all clients.
 Clients must give written consent to the joint retainer.
 Lawyers should suggest independent legal advice, especially if one client is less
experienced.
 If the lawyer has a continuing relationship with one client, they must inform the others and
suggest independent legal advice.

7.2 Contentious Issues and Withdrawal

 If joint clients disagree, the lawyer cannot advise on the issue unless all agree.
 If no agreement is possible, the lawyer must refer the clients to other lawyers or let them
negotiate without involvement.
 If the disagreement cannot be resolved, the lawyer must stop representing all clients unless
they agree otherwise.

8. Joint Retainers in Estate and Real Estate Matters

 Specific rules apply to joint retainers in these areas.

8.1 Joint Wills for Spouses or Partners

 Joint wills for spouses or partners are treated as joint retainers.

 If one partner wants to change their will later, the lawyer must keep this confidential
unless:
o The couple has separated or divorced.
o One partner has died.
o The other partner agrees to the change.

8.2 Acting for Borrower and Lender

 Lawyers usually cannot represent both borrower and lender in a mortgage or loan unless:
o The lender is a major institution or specific organization.
o The lawyer works in a remote area with no other options.
o The loan is small (under $75,000).
 Even in these cases, the lawyer must disclose relevant information to both parties.

8.3 Acting for Transferor and Transferee

 Generally, one lawyer cannot represent both parties in property title transfers unless:
o They work in the same firm but represent different parties.
o The transaction is between related persons or in a remote area.
 Lawyers should avoid joint retainers where conflicts are likely, as unexpected issues could
harm both parties.

9. Pro bono and other short-term legal services — rr. 3.4-16.2–3.4-16.6 and commentary
 1. To help the public and the justice system, rules for conflicts of interest are adjusted for
lawyers providing pro bono or short-term legal services.
2. "Short-term legal services" are legal advice or help given briefly through a pro bono or not-
for-profit provider.
3. Lawyers can give short-term legal services without checking for conflicts of interest with
their firm's current or past clients.
4. Confidential information from short-term clients is not shared with other lawyers in the
firm, but the lawyer must ensure this confidentiality.
5. If the short-term client agrees to use the lawyer's firm resources, a conflict check is
required.
6. Lawyers cannot help a short-term client if they know of a conflict of interest. If a conflict
arises later, they must stop helping immediately.

10. Transfers between law firms — rr. 3.4-17–3.4-23 and commentaries

1. Conflicts may happen when a lawyer moves from one law firm to another.
2. Rules apply if a lawyer knows or discovers they have confidential information from a
former client relevant to the new firm's case.
3. These rules prevent misuse of client information and ensure confidentiality.
4. The new firm must follow steps to avoid conflicts or stop representing its client.
5. Rules also apply to candidates in the licensing process, lawyers moving to/from
government roles, and in-house counsel roles.

10.1 Law firm disqualification — r. 3.4-20 and commentary

1. If a lawyer moving firms has confidential client information that could harm a former
client, the new firm must stop representing its client unless:
o The former client consents, or
o The new firm sets up measures to prevent disclosure and informs the former client.
2. The new firm must use professional judgment to ensure no disclosure occurs, like setting
up confidentiality screens.

10.2 Transferring lawyer disqualification — rr. 3.4-21–3.4-22

1. Without the former client's consent, the transferring lawyer cannot:

o Help the new firm with the case, or
o Share confidential client information (except to check for conflicts).
2. No one in the new firm can discuss the case with the transferring lawyer without the former
client’s consent.

10.3 Lawyer due diligence for non-lawyer staff — r. 3.4-23 and commentary

1. Lawyers and firms must ensure all staff (lawyers and non-lawyers) follow the rules about
client confidentiality when transferring firms.
11. Transactions with clients — rr. 3.4-27–3.4-28

1. Lawyers can only enter into transactions with clients if allowed under the rules and if the
transaction is fair and reasonable.
2. Transactions include lending or borrowing money, buying or selling property, or entering
joint business ventures.

11.1 Borrowing from clients — rr. 3.4-27 and 3.4-28.1

1. Lawyers cannot borrow from clients unless the client is a regulated lender (e.g., bank or
credit union) or a related person (e.g., family member).

11.2 Indirect transactions — r. 3.4-28.2 and commentary

1. Lawyers cannot bypass rules by using related persons, trusts, or estates to make prohibited
transactions.

11.3 Requirements for permissible transactions with clients — rr. 3.4-28, 3.4-29, and
commentaries

1. Lawyers must:
o Disclose any conflicting interest.
o Recommend or require the client to get independent legal advice or representation.
o Get the client’s consent.
2. Lawyers must document that the client received advice or declined it in writing.

11.4 Lawyers in mortgage or loan transactions — r. 3.4-27, r. 3.4-33.1, and commentary

1. Lawyers must act with care and integrity in mortgage or loan transactions involving
clients.
2. Lawyers cannot:
o Sell or arrange mortgages without proper skills.
o Recommend syndicated mortgages where they are investors unless the client has
ILA
o Hold syndicated mortgages for clients without full documentation.

11. Mortgage or Loan Transactions

1. A lawyer cannot take part in mortgage or loan transactions through a corporation,

syndicate, partnership, trust, or other entity if the lawyer or a related person has a
financial interest. The exception is if their ownership is less than 5% of publicly offered
securities.
 2. The rule commentary lists acceptable transactions. These include introducing borrowers to
lenders, collecting loan payments on behalf of a client (paid to the lawyer and deposited in a
trust account), making personal investments, or managing loans as an executor or trustee for
non-investment purposes.
3. Lending money to clients can create conflicts of interest, especially if the loan defaults.
Before lending to a non-related client, the lawyer must:
o Ensure the loan is fair and reasonable.
o Disclose the conflict of interest.
o Require the client to get independent legal advice.
o Obtain the client's written consent.
4. When arranging or selling mortgages for clients, lawyers must disclose in writing:
o The mortgage’s priority.
o Any relevant information about the transaction that might concern investors.
5. Lawyers must not promote investments in mortgages where they or a related person have a
financial interest unless the ownership is less than 5% of publicly offered securities.

11.5 Acting for Clients in Transactions

 A lawyer may handle legal work in a transaction involving both the lawyer and a client.
However, the lawyer must prioritize the client’s interests.
 If there’s a risk the lawyer’s interests will harm the client’s interests, the lawyer must
decline unless the client consents, and the lawyer believes they can act without harm.

11.6 Payment for Legal Services

 If a client offers to pay with property or business shares (other than publicly traded
shares), the lawyer should recommend ILA before accepting.

11.7 Guaranteeing Debts

 Lawyers cannot personally guarantee debts for clients unless:

o The loan is for the lawyer or their close family, and the lender is a recognized
financial institution.
o The transaction benefits a non-profit organization, and the lawyer is a member or
supporter.
o The lawyer is in a business venture with the client, and all participants provide
guarantees as required. In this case:
 The lawyer must follow conflict-of-interest rules.
 All parties involved must have ILA.

12. Other Conflicts of Interest

12.1 Personal Relationships

 Lawyers can act for friends or family but must avoid letting personal feelings interfere with
objective advice.
 Relationships with clients can create conflicts due to emotional influences. Lawyers should
assess the client’s vulnerability and their ability to remain loyal and objective.
 If a conflict exists, another lawyer from the firm may handle the case.

12.2 Affiliations and Multi-Discipline Practices

 Lawyers in affiliations must check for conflicts as if they and the affiliated entity were one.
  Before providing joint legal and non-legal services, lawyers must disclose:
o Any risk to lawyer-client privilege.
o Their role in the services.
o Financial arrangements with the entity.
 Lawyers must ensure non-legal partners follow conflict-of-interest rules.

12.3 Outside Interests and Public Office

 Lawyers can pursue outside interests but must avoid conflicts with professional duties.
 If conflicts arise, lawyers must disengage, decline to act, or obtain client consent.

12.4 Gifts and Testamentary Instruments

 A lawyer must tell estate trustees that they can choose any lawyer, even if the will directs
them to retain the drafting lawyer.
 Lawyers must not prepare wills giving themselves or their associates gifts unless the client is
a family member.

12.5 Judicial Interim Release

 Lawyers cannot act as sureties, deposit personal funds, or supervise accused clients
unless the accused is family and represented by another lawyer in the firm.

12.6 Unrepresented Persons

 When dealing with unrepresented parties, lawyers must clarify that they only represent
their own client.

13. Conflicts Checking Systems

 Lawyers must maintain a system to identify conflicts by recording all client and matter
information. Checks should be done:
o Before consultations.
o After consultations and before accepting a retainer.
o When new people or lawyers are involved in a case.
Chapter 7: Duty to the Client

The Rules of Professional Conduct explain a lawyer’s duties to different groups, including the
client, other lawyers, the Law Society, and the justice system. While duties to other groups may
affect this, the lawyer’s duty to the client is one of the most important.
Some duties related to the client, covered in other chapters, include:

 Providing competent service.

 Keeping client information confidential.
 Avoiding conflicts of interest.
 Charging fair and reasonable fees.
 Withdrawing from representation when necessary.
 Communicating effectively to manage the client relationship.

1. The Lawyer as a Fiduciary

The lawyer-client relationship includes 4 ASPECTS:

 A fiduciary relationship, where the lawyer acts with trust and honesty on behalf of the
client.
 An agency relationship, where the lawyer acts as the client’s agent.
 A business/contractual relationship, where there is an agreement for legal services.
 A professional relationship, subject to the Rules.

The fiduciary relationship is the most important. Lawyers, as fiduciaries, must prioritize the
client’s needs above their own. Lawyers must:

 Be honest and candid, sharing any information that may affect the client’s interests.
 Protect client information by keeping it confidential.
 Avoid conflicts of interest.
 Safeguard the client’s right to choose their lawyer, especially when leaving a firm.

2. Duties When Advising Clients

The Rules set minimum standards of competence for lawyers when advising clients. Key duties
include:
  Being honest and candid.
 Avoiding involvement in dishonesty, fraud, or illegal acts.
 Encouraging settlement or compromise.
 Avoiding threats of penal or regulatory action without proper justification.
 Acting appropriately with clients with diminished capacity or under duress.
 Handling medical-legal reports properly.
 Advising on title insurance, mortgage transactions, and language rights.
 Dealing with errors and omissions.

2.1 Honesty and Candour

Lawyers must:

 Be honest and clear when advising clients.

 Provide opinions based on facts, law, and their expertise.
 Avoid giving unrealistic assurances or guaranteeing outcomes.
 Inform clients when their expectations are unreasonable.

2.2 Dishonesty, Fraud, or Illegal Acts

Lawyers must not:

 Help or encourage dishonesty, fraud, or illegal acts knowingly.

 Advise clients on how to break the law or avoid punishment.

They must:

 Investigate the client’s purpose for legal services.

 Avoid becoming involved in dishonest activities.
 Take specific steps if their client is an organization engaging in wrongful conduct,
including reporting and withdrawing services.

2.3 Settlement and ADR

Lawyers should:

 Discuss the pros and cons of starting legal proceedings.

 Advise clients to settle disputes reasonably.
 Present settlement offers quickly and explain them clearly.
 Suggest alternative dispute resolution (ADR) methods when appropriate.

2.4 Threatening Penal or Regulatory Proceedings

Lawyers must not:

 Threaten or advise clients to threaten legal or regulatory actions without proper

justification.

Lawyers can:

 Report legitimate issues to authorities.

 Notify a regulatory body about misconduct while pursuing civil remedies.

2.5 Clients with Diminished Capacity

Lawyers must:

 Maintain a normal lawyer-client relationship where possible.

 Seek lawful representation for clients unable to make decisions.
 Ensure the client’s interests are protected.

2.6 Clients Under Duress

Lawyers must:

 Ensure clients act freely and are not under pressure.

 Confirm that instructions reflect the client’s true wishes.
 Refuse to act if they believe instructions result from undue influence or duress.

2.7 Medical-Legal Reports — rr. 3.2-9.1– 3.2-9.3 and Commentary

1. A lawyer may need an expert’s report to support a client’s case.

2. Lawyers must follow rules for handling medical-legal reports because they may include
sensitive information.
3. Lawyers should only order a report if the client gives written instructions/consent.
4. A lawyer cannot withhold a report from the client, even if the report requests it.
5. If a report is sent with conditions not to share it with the client, the lawyer must return it
immediately unless the client gave advance approval.
6. If a report could harm the client, the lawyer should discourage the client from seeing it.
7. If the client insists, the lawyer must allow them to see the report and recommend doing so in
the report writer’s office for better understanding.
8. Lawyers can avoid issues by discussing disclosure rules with the report writer before the
report is prepared.

2.8 Title Insurance — rr. 3.2-9.4–3.2-9.7 and Commentaries

1. Title insurance protects property owners and lenders against title-related losses.
2. In Ontario, title insurance is not mandatory, and there are other ways to protect interests in
real estate transactions.
 3. A lawyer advising on real estate must:
o Assess all reasonable ways to ensure title;
o Consider when title insurance may be suitable;
o Understand the insurance product before recommending it;
o Explain the benefits, conditions, and limitations to the client; and
o Fully disclose any connections to LAWPRO® if discussing the TitlePLUS®
program.
4. A lawyer cannot accept any payment from a title insurance provider for recommending
their product and must disclose this to the client.

2.9 Reporting on Mortgage Transactions — rr. 3.2-9.8–3.2-9.9

1. A lawyer acting for a lender must provide a copy of the registered mortgage and a final
report within 60 days of registration or as instructed.
2. This applies even if funds were used to clear prior claims on the property and the discharge
remains unregistered.

2.10 Errors and Omissions — s. 7.8

1. A lawyer must inform the client immediately about any error or omission that may harm
them and cannot be corrected easily.
2. The lawyer should:
o Inform the client without risking any insurance rights;
o Suggest the client get ILA; and
o Advise if the lawyer can no longer act for the client.
3. A lawyer may continue representing the client only with their consent if there is no
conflict of interest.
4. The lawyer must notify their insurer about any possible claim to ensure the client’s
protection is not affected.
5. Lawyers are required to report potential claims under their insurance policy without letting
it interfere with their duties to the client.

2.11 Official Language Rights — rr. 3.2-2A– 3.2-2B and Commentary

1. Lawyers must inform clients about their language rights, including the choice to use an
official or recognized language, such as Indigenous languages.
2. Clients decide which language to use, not the lawyer.
3. Lawyers should know laws on language rights, including the Canadian Charter of Rights
and Freedoms and relevant provincial laws.
4. If the lawyer cannot provide competent service in the client’s language, they must
consider this carefully.

3. Duties Regarding Client Property — s. 3.5 and Commentaries; By-Law 9

3.1 Client Property

1. Lawyers must handle client property with care and follow all rules about its safekeeping.
2. Client property must:
o Be labeled clearly;
o Be kept separate from the lawyer’s own property; and
o Be stored securely (e.g., in a safe or safety deposit box).
3. Lawyers must:
o Notify clients when receiving their property;
o Keep accurate records of client property; and
o Deliver it promptly upon the client’s request or when the retainer ends.
4. If there is uncertainty about who should receive the property, the lawyer must seek tribunal
direction.

3.2 Client Money

1. Client money includes:

o Funds from other parties belonging to the client;
o Funds from the client meant for others;
o Money for disbursements; and
o Deposits for legal services.
2. Lawyers must keep client money in a designated trust account, separate from their own
funds, and maintain proper records.

3.3 Client File

1. Lawyers must protect and safely store client documents during & after retainer.
2. At the end of the retainer, lawyers should return:
o Originals and paid-for copies of documents;
o Letters, transcripts, reports, and evidence;
o Trial preparation documents and disbursement receipts.
3. Documents created solely for the lawyer’s use (e.g., internal memos and notes) belong to
the lawyer and do not need to be returned.
4. If clients request copies of such documents, the lawyer may provide them and discuss costs
beforehand.

CHAPTER 8

Fees and Disbursements

1. Retainers
1.1 A lawyer must discuss two things before starting work: the scope of services and the costs.
1.2 The scope means explaining what services will and will not be provided.
1.3 The costs mean the fees and disbursements, and whether a retainer payment is required.
1.4 Lawyers should give clients a clear understanding of what to expect regarding work and cost.
  Types of Retainers:
o A contract outlining the terms of work.
o An advance payment to secure the lawyer’s services.

1.5 If possible, lawyers should request a money retainer at the start of the relationship.
1.6 Retainers must be deposited into a trust account and used for billed services.
1.7 Lawyers should explain if more retainers might be needed as the case progresses.
1.8 Lawyers may withdraw if a client cannot pay, but only after providing notice and ensuring no
serious harm to the client.

2. Fees and Disbursements

2 Types of Fees:

 Hourly fees for time spent.

 Flat fees for specific tasks.
 Stage-based fees for divided tasks.
 Contingency fees based on case success.

Disbursements are expenses paid on the client’s behalf, such as mailing costs or expert reports.
Lawyers cannot profit from these.

Fees must be fair, reasonable, and disclosed to the client.

2.1. Fair and Reasonable Fees R 3.6-1 and commentary, r.3.6-4 and commentary. R4.1-1
Fairness considers:

 Time and effort spent.

 Case difficulty and importance.
 The lawyer’s experience.
 If special skill was required
 Amount involved or value of subject matter
 The results achieved.
 Fees authorized by statute
 Special circumstances eg, Loss of other business to accept the retainer, delay in payment,
urgency of the matter etc
 Likelihood that acceptance will lead to not accepting others
 Any relevant agreement between Layer and client
 Any estimate or range of fees given by the Lawyer
 Client’s prior consent to fee

2.2 1. Division of Fees in a Joint Retainer

 When acting for two or more clients in the same matter (joint retainer), fees and
disbursements must be divided fairly between clients.
 Clients can agree to a different arrangement, but this should ideally be in writing.
 The fee division must be clearly shown on the statement of account provided to each
client.
 Lawyers are encouraged to provide pro bono services or reduce/waive fees for clients facing
hardship or poverty to ensure access to legal advice or representation.
2. Timely Disclosure to Client and Cost Estimates

2.1 Disclosure of Fees and Disbursements

 Lawyers must fully disclose all financial dealings with clients.

 Lawyers cannot charge or accept fees or disbursements unless they have been disclosed to
the client in a timely manner.
 At the start of the retainer, lawyers should explain charges for fees and disbursements.

2.2 Providing Cost Estimates

 Before or shortly after starting representation, lawyers should give the client information
about:
o Fees, disbursements, and interest.
o How fees will be calculated.
 Lawyers should get the client’s approval before incurring significant expenses, such as
obtaining an expert report.
 Lawyers should provide the client with an estimate of expected fees and disbursements to
complete the matter or reach a particular stage.

2.3 Confirming Information in Writing

 Fee-related information should be confirmed in writing through a signed retainer

agreement or engagement letter.

2.4 Informing Clients About Unexpected Costs

 If unexpected developments increase costs, the lawyer should:

o Inform the client immediately about the reason for the increased fees or
disbursements.
o Provide a revised cost estimate.
o Confirm these details in writing.
 The client’s new instructions based on this information should also be confirmed in writing.

2.5 Managing Expectations with Interim Statements

 Lawyers should provide interim statements of account during the retainer to manage client
expectations and ensure timely disclosure of costs.

2.3. No Hidden Fees- Commentary r.3.6-1.1

 The lawyer’s fiduciary duty to the client also prohibits the lawyer from accepting payment or
compensation from anyone other than the client in the matter unless the client is informed
and consents in writing.
 Lawyers cannot accept hidden payments, like commissions or rebates, without client
consent.
2.4 Charging Through Civil Society Organizations (CSOs)
Lawyers working for CSOs must not charge clients for services but may charge for
disbursements, if disclosed in advance.

2.5 Interest on Overdue Accounts

6.1 Interest on unpaid bills must follow legal guidelines and be disclosed in advance.(maybe in
retainer)

2.6. Written Confirmation- commentary r.3.6-1.1

Lawyers should confirm billing method in writing for fees and disbursement via-

 using a retainer signed by client

 letter signed by client
 Confirming memo
 Using settlement funds for payment, this must also be in writing.

Written confirmation should include scope, fees, expenses, interest etc

2.7. Statements of Account

Statements must clearly separate fees, disbursements, and taxes.
Lawyers should review and sign all bills.
Disputes over fees should be resolved calmly, with an explanation of the client’s rights.

2.8 Appropriation of Funds from Trust (r. 3.6-10; By-Law 9)

1. Lawyers must deposit any money received on behalf of a client, including retainers, into a
trust account.
2. Lawyers cannot use client funds in trust for fees unless allowed by the by-laws.
3. Under By-Law 9, lawyers can withdraw money from a trust account only if:
o It’s for payment to a client or someone on the client’s behalf.
o It’s to reimburse the lawyer for expenses paid or incurred for the client.
o It’s for fees after the lawyer delivers a bill to the client.
o It’s to transfer money to another trust account for the client.
o It’s money that shouldn’t have been in the trust account but was mistakenly
deposited there.
4. Lawyers can only pay themselves from trust funds if:
o The work is completed.
o A bill has been delivered to the client.
o There are enough funds in the trust for that client.
5. Taking fees from trust money without meeting these conditions is misconduct.
6. Disbursements (expenses for the client) can be paid from trust with the client’s consent.
7. Money in trust earmarked for other purposes (e.g., settlements or property sales) cannot be
used for fees or disbursements.
3. Division of Fees (rr. 3.6-5, 3.6-7, 3.6-8)

1. Fee splitting happens when a lawyer shares fees with another person.
2. Lawyers can share fees with others outside their firm if:
o The client knows and agrees.
o The fees are split based on the work and responsibility of each person.
3. Lawyers cannot share fees with non-lawyers, except:
o In multi-disciplinary practices with non-lawyer partners.
o In law firms with lawyers from other provinces or countries.
o Sale and purchase of a law practice
o Landlord taking share in the fees generated by the law practice
o Paying employee for service other than referring clients based on Lawyer’s fee
o Lawyers can receive referral from non-licensee for non legal work
4. Affiliated entities (not partnerships) cannot share in a lawyer’s profits.

4. Referral Fees (rr. 3.6-6.0–3.6-7.1)

1. A referral happens when a lawyer suggests another lawyer or paralegal to a client.

2. Lawyers can accept referral fees only if:
o The fee is reasonable and doesn’t increase the client’s costs.
o There’s a referral agreement signed by all parties.
o The referred lawyer has the skill to handle the case.
o The referral wasn’t made due to a conflict of interest or suspended license.
o The referral fee meets the set limits ( 15% of the first $50,000 in fees, AND 5% of
any additional fees for the matter, to a maximum to $25,000).
o The licensee isn’t providing service through a CSO
3. Referrals made after April 28, 2017, must follow these rules.
4. Lawyer who receives the referral fee shall note the fee on the account sent to the client at
the time it is paid and obtain Client’s acknowledgement, failing which, the lawyer must
confirm in writing to the client that the client has been asked to acknowledge but has
declined to do so.
5. Disclosure to client- Referring client and licensee who receives the referral both have the
fiduciary duty to the referred clients. Complete transparency must be maintained.

5. Contingency Fees (rr. 3.6-2–3.6-2.3)

5.1 Contingency Fees Generally

1. A contingency fee is when a lawyer’s fee depends on the successful outcome or completion
of a client’s matter.
2. Lawyers can charge contingency fees in most matters, but not for:
o Family law matters.
o Criminal Code matters.
o Criminal or quasi-criminal matters.
 3. Contingency fees can take different forms, such as:
o Fixed percentage: The lawyer’s percentage stays the same throughout the matter.
o Staged or graduated: The lawyer’s percentage changes depending on the stage at
which the matter is resolved.
o Partial: The client pays for some services upfront or as the case progresses, in
addition to a contingency fee if the client wins.
o Bonus or premium: The client pays a bonus or premium to the lawyer on top of the
regular fees for a positive result.
4. There is no maximum percentage set by law. However:
o Lawyers cannot charge a contingency fee that exceeds the amount the client receives
in an award or settlement (excluding disbursements and taxes).
5. When setting the contingency fee percentage, lawyers must consider:
o The likelihood of success.
o The complexity of the case.
o The risks and expenses involved.
o The amount expected to be recovered.
o The possibility of costs being awarded to another party.
6. Contingency fees must always be fair and reasonable.
7. Lawyers who advertise contingency fee services must follow specific rules. For more details,
refer to Chapter 13.

5.2 Contingency Fee Agreements (CFAs): Requirements and Exemptions

1. A Contingency Fee Agreement (CFA) is a written agreement where payment depends on

the successful outcome of the client’s case.
2. CFAs must:
o Be in writing, as required by Section 28.1(4) of the Solicitors Act.
o Follow additional rules if the client is a person under disability, as outlined in O. Reg.
563/20.
3. Lawyers should be extra cautious when entering into CFAs with vulnerable or incapacitated
clients.

5.2.1 Standard-Form Contingency Fee Agreement

1. O. Reg. 563/20 mandates the use of a Standard Form CFA, which is available on the Law
Society’s website.
2. Lawyers must use the Standard Form CFA unless:
o A court approves the CFA or the contingency fee.
o The client (or payer) is an organization that:
 Employs more than 25 people.
 Employs a full-time lawyer.
 Has assets or annual revenues exceeding $10 million.
3. The Standard Form CFA may be modified by:
o Filling in blank spaces.
o Removing optional clauses or tailoring them.
o Aligning the CFA with the law firm’s branding.
o Removing inapplicable “Example Based on a Partial Award for Costs.”
5.2.2 When the Standard-Form CFA Is Not Required

1. Even when the Standard Form CFA is not required, any contingency fee arrangement must
still be in writing.
2. No specific format is prescribed, but certain terms are prohibited.
3. Lawyers must consult O. Reg. 563/20 (sections 7–8) to understand the required terms based
on the situation.

5.2.3 Client Disclosure Requirements for Contingency Fees

1. Before entering into a CFA, lawyers must:

o Explain how the contingency fee is calculated, using the factors mentioned in section
5.1.
o Provide the client with the “Contingency fees: What you need to know” guide
(available on the Law Society’s website).
o Allow the client time to review the guide and ask questions.
2. After completing the CFA, lawyers must disclose fee-related details in the client’s statement
of account, including:
o A breakdown of the award/settlement, showing the client’s net amount and listing
fees, disbursements, and taxes.
o An explanation of the reasonableness of the contingency fee based on:
 Time spent.
 Complexity of the matter.
 Results achieved.
 Risks taken.
o A statement that the client can apply to the Superior Court of Justice for a fee
assessment and the deadline for doing so.
3. These requirements do not apply in cases under the Class Proceedings Act, 1992, or where
the payer is an organization meeting specific criteria in section 7(3) of O. Reg. 563/20.
4. Lawyers marketing contingency fee services must publish their maximum contingency fee
percentage.

5.3 Record-Keeping and Reporting Obligations for Contingency Fees

1. There are no specific record-keeping rules for contingency fees.

2. Lawyers must keep a copy of CFAs and related documents to show compliance with
contingency fee rules.

6. Securing Payment for Legal Services

1. Lawyers may secure payment for legal services in these ways:

o Money retainers: Requesting a fair and reasonable upfront retainer to cover
anticipated fees and disbursements.
o Charge on property: Registering a charge against the client’s property under Section
35 of the Solicitors Act.
o Charging order: Obtaining a court order to secure payment from property the lawyer
helped recover (Section 34 of the Solicitors Act).
 o Solicitor’s lien: Asserting a common-law lien on the client’s property already in the
lawyer’s possession.
2. Lawyers must assess whether securing payment through these methods is appropriate.
3. Before entering into any financial transaction with a client to secure payment (e.g., a
mortgage), the lawyer must follow conflict-of-interest rules discussed in Chapter 6.

Chapter 9: Managing the Client Relationship

1. Managing the Stages of the Client Relationship

1. Lawyers must manage the client relationship at every stage to fulfill their professional duties
and meet client needs.
2. The client relationship involves the following stages:
o Initial screening.
o Non-engagement or engagement.
o Implementation.
o Disengagement or completion.

1.1 Initial Screening Stage

1. The purpose of the initial screening is to decide if the lawyer can assist the prospective client.
2. During this stage, lawyers should:
o Determine if they have the knowledge, time, and skills to act.
o Check for conflicts of interest.
o Identify how the prospective client learned about the firm (for marketing purposes).
o Assess the client’s demeanor and ability to work cooperatively.
o Discuss confidentiality, privacy, and privilege issues.
o Confirm the tasks required and whether the lawyer can handle them.
o Evaluate whether the client’s expectations are reasonable and achievable.
o Discuss potential costs and the client’s ability to pay.
o Avoid acting for clients with unlawful or dishonest goals.
o Check if the client was previously assisted by another licensee and confirm they were
properly discharged.
3. All information gathered during this stage should be documented in a memo, even if the
lawyer does not take on the case.
1.2 Non-Engagement Stage

1. If the lawyer declines the retainer or the client does not hire the lawyer, the decision must be
confirmed in a non-engagement letter.
2. The letter should:
o Include the date of the consultation.
o Confirm that the lawyer is not retained.
o State the reason for declining (e.g., conflict, lack of availability).
o Mention any deadlines or statutes of limitations and urge immediate action.
o Avoid giving legal advice unless carefully researched.
o Recommend seeking other legal representation, if appropriate.
o List any documents returned to the prospective client.
o Be sent in a way that ensures delivery confirmation (e.g., registered mail).
3. Information from the prospective client must be included in the lawyer’s conflicts-checking
system.

1.3 Engagement Stage

1. If the lawyer accepts the retainer, the terms of the engagement must be confirmed in writing.
o This can be done through a retainer agreement or an engagement letter.
2. Two essential terms to include are:
o The scope of services.
o The cost of services.
3. Depending on the matter and client, lawyers may include additional terms.
4. A written agreement reduces misunderstandings between the lawyer and client.

What to Include in the Retainer Agreement or Engagement Letter

1. Clearly identify the client(s) by using their full legal names.

2. Mention any specific needs the client(s) may have.
3. For joint retainers, explain:
o There is no confidentiality between the clients.
o If a conflict arises that cannot be resolved, the lawyer may have to withdraw.
4. Outline issues regarding confidential information (e.g., disclosure to third-party experts for
opinions).
5. Confirm the client’s goals and the proposed strategy to meet them.
6. Define the scope of representation.
7. If providing services through a civil society organization, explain the nature, extent, and
scope of services honestly.
8. Specify what the lawyer needs from the client, such as:
o Information.
o Documents.
o Actions to be taken.
9. Describe the key steps and processes involved in the matter.
10. Identify the lawyer responsible for the case and list additional staff members involved, along
with their roles.
11. Provide an estimated timeline for key steps and completion of the matter.
12. Set out the method (e.g., email or letters) and frequency of communication with the client.
  Take into account any accommodations the client may need.

13. Clearly outline:

o The type of fees (e.g., hourly rate or flat fee).
o Whether the fees may change in the future.
14. Explain potential disbursements and whether:
o The client will pay them directly.
o The lawyer will pay them and bill the client later (e.g., for experts or valuators).
15. State if a money retainer is required and when it needs to be replenished.
16. Specify how often interim bills will be provided and what they will include.
17. Indicate consequences of late payment, such as:
o Interest on overdue accounts (per the Solicitors Act or as permitted by law).
18. State the consequences of non-payment, including the potential for withdrawal of services.
19. Outline circumstances where the lawyer may terminate the retainer.
20. Address what happens if the lawyer cannot get clear instructions from the client.
21. Discuss:
o Ownership of file contents and work product.
o File transfer or retention policies.
o File destruction policies if the retainer ends.
22. Specify that any changes to the terms must be in writing.
23. State that the engagement begins only when:
o The client signs the agreement.
o Any required money retainer is paid.

Clear Language and Accessibility

1. The agreement should be written in clear and understandable language.

2. Lawyers should review the terms with the client to ensure there is no misunderstanding.
3. Lawyers must also consider and address the client’s accessibility needs.

Limited Scope Retainers

1. When acting under a limited scope retainer, the lawyer must document the engagement in
writing.
2. The lawyer must:
o Explain the nature, extent, and scope of the services.
o Confirm whether the services can be provided within the client’s financial means.
o Provide the client with a copy of the agreement.

Contingency Fee Agreements (CFA)

1. For cases taken on a contingency fee basis after July 1, 2021:

o Lawyers must use a standard-form contingency fee agreement (Standard Form
CFA).
o Exceptions to this rule are discussed in Chapter 8 (Fees and Disbursements).
1.4 Implementation Stage

1. After being retained, the lawyer must competently perform the legal services agreed upon.
2. The lawyer’s service must be:
o Competent, timely, conscientious, diligent, efficient, and civil.
3. The lawyer must provide cost-effective services while being responsive to the client’s needs.
4. The lawyer must:
o Keep the client informed at all stages of the matter.
o Meet deadlines unless there is a valid explanation, and ensure no harm comes to the
client.

Adapting to Changes

1. If the client’s needs or goals change, the lawyer must:

o Adjust the legal strategy.
o Communicate with the client about these changes.
2. If something prevents the lawyer from meeting the terms of the retainer:
o The lawyer must promptly inform the client and explain the reasons.
3. Any changes to the terms of engagement must be confirmed in writing.

New Instructions or Competency Issues

1. Any new or different client instructions must be confirmed in writing.

2. The lawyer must explain any limitations to the client’s instructions, such as:
o The lawyer cannot follow instructions that would violate the Rules.
3. If a task exceeds the lawyer’s competence, the lawyer should:
o Decline to act.
o Get the client’s consent to consult or work with another competent licensee.
o Obtain the client’s consent to become competent without causing undue delay or
expense.
4. If the lawyer cannot continue to handle the matter competently, the lawyer must withdraw as
per the Rules.

1.5 Disengagement or Completion Stage

1. The retainer will eventually end because:

o The matter is complete.
o The client or lawyer ends the retainer before completion.
2. Clients can end the retainer at any time for any reason.
3. Lawyers must follow the Rules when ending a retainer. For more details, see Chapter 10.

Completion of the Matter

 1. When the matter is complete, the lawyer should confirm this with the client in writing.
2. The letter should:
o Confirm the matter’s completion and the outcome.
o Detail the steps taken to complete the matter.
o Outline any further steps the client or lawyer must take.
o Ask the client if they need further assistance.
o Confirm the return of any client property (e.g., documents or funds).
o Explain file storage and retrieval arrangements.
o Remind the client of the file retention and destruction policy.
o Include the final bill and trust statement if applicable.
o Thank the client for the opportunity to assist.

Limited Scope Retainers

1. When services are limited in scope, the lawyer should send a similar letter confirming:
o The completion of the agreed terms.
o Steps the client still needs to take.
o Any deadlines or limitation periods.
o A recommendation to seek legal advice for matters outside the retainer.

2. Managing Client Expectations

1. Most complaints arise from unmet expectations about service, not results.
2. Lawyers should discuss client expectations at the start of the retainer.
o Explain what the lawyer needs from the client to meet those expectations.

Common Client Expectations

1. Clients usually expect:

o Timely results.
o Prompt responses to calls or emails.
o Transparency about costs.
2. Clients also expect to be kept informed about:
o Developments in their matter.
o Both positive and negative updates.
3. To manage expectations, lawyers should:
o Provide written cost estimates at the start.
o Send interim bills as the matter progresses.

If Expectations Change

1. If the client’s expectations change, the lawyer must:

o Discuss these changes with the client.
o Confirm any new instructions in writing.
 2. If there is a breakdown in communication, the lawyer may need to withdraw from the
retainer, following the Rules.

Chapter 10: Withdrawal from Representation

A lawyer-client relationship can end at any time, and for any reason, by the client. However, a lawyer
can only withdraw for good cause and with reasonable notice to the client.
1. Good cause and reasonable notice — r. 3.7-1 and commentary

A lawyer must have a valid reason to stop representing a client. The amount of time given and how
the lawyer informs the client depends on several factors, such as the type of case, the stage of the
matter, and the client’s needs. The lawyer must also inform the client unless they cannot be reached
after reasonable efforts. The lawyer should always act in the client's best interest and allow the client
time to find another lawyer.

2. Optional withdrawal

A lawyer can withdraw from representing a client if they have a good cause and give reasonable
notice. The lawyer may withdraw if:

 There is a serious loss of confidence between the lawyer and the client.
 The client fails to pay fees after reasonable notice, and the client will not be seriously harmed.

2.1 Serious loss of confidence — r. 3.7-2 and commentary

A serious loss of confidence may allow the lawyer to withdraw. This may happen if the client is
dishonest or refuses to follow the lawyer's advice. Other examples include poor communication or
difficulty getting instructions. The lawyer must give reasonable notice and protect the client’s
interests.

2.2 Non-payment of fees — r. 3.7-3

If the client fails to pay fees after notice, the lawyer may withdraw, unless it would seriously harm the
client. The lawyer must give a reasonable, written notice before withdrawing.

3. Withdrawal from criminal proceedings

A lawyer can withdraw from a criminal case if the client fails to pay or for another valid reason. The
lawyer must make sure the client has enough time to find a new lawyer. The lawyer must also follow
the court rules when withdrawing.

3.1 Withdrawal permitted — r. 3.7-4 and commentary

A lawyer can withdraw if there is enough time for the client to find a new lawyer. The lawyer must
notify the client and the court, and provide a full account of the fees.

3.2 Withdrawal not permitted — r. 3.7-5

A lawyer cannot withdraw if there is not enough time for the client to find another lawyer and prepare
for trial.

3.3 Withdrawal with permission of the court — r. 3.7-6 and commentary

If there is not enough time for the client to find another lawyer, the lawyer can withdraw with the
court’s permission. The lawyer must inform the court and Crown counsel of their intention.

4. Mandatory withdrawal — r. 3.7-7 and commentary

A lawyer must withdraw from representing a client in certain situations, such as:

 If the client fires the lawyer.

 If the client asks the lawyer to act unethically.
 If the lawyer is not competent to handle the case.
5. Leaving a law firm — r. 3.7-7A and commentary

When a lawyer leaves a firm, they must inform clients and provide options for their representation.
Both the departing lawyer and the firm must cooperate to ensure clients’ interests are protected.
Clients should have the information they need to decide whom to retain.

6. Manner of withdrawal — rr. 3.7-8–3.7-9 and commentary

When a lawyer withdraws, they must:

 Notify the client in writing, including the reason.

 Return all client documents and property.
 Provide all necessary information for the case.
 Settle any outstanding fees.
 Work with the new lawyer to avoid harm to the client.
 Follow court rules.

If the lawyer enforces a lien for unpaid fees, it should not harm the client. If there are disputes over
client property, the lawyer should help resolve them.

These rules also apply if the lawyer leaves a firm.

6.1 Confidentiality upon withdrawal — r. 3.3-1 and commentary

 The duty of confidentiality continues after the lawyer-client relationship ends.

 Even if the lawyer and client disagree, confidentiality still applies.
 When withdrawing, the lawyer cannot share any client information obtained during the
relationship unless the client gives permission or the disclosure is allowed under section 3.3
of the Rules.
 The lawyer must not disclose the reason for withdrawal to the new lawyer, parties, or tribunal.

6.2 Written confirmation of file transfer

 If a lawyer is terminated while the client’s case is ongoing, and the client wants to transfer it
to a new lawyer, the lawyer must get written permission from the client for the file transfer.
 If the file is given to the client directly, the lawyer must get the client’s written confirmation
of receipt.
 If the client requests copies of documents in the file, the lawyer may provide them, and
should discuss any costs with the client.

7. Duties of a successor lawyer — r. 3.7-10 and commentary

 When a lawyer is contacted by a client who was previously represented by another lawyer,
the new lawyer has certain obligations.
 Before accepting the client, the new lawyer must confirm that the previous lawyer has
withdrawn, been discharged, or approved of the change.
  The new lawyer should encourage the client to settle or address any unpaid fees from the
previous lawyer, especially if the previous lawyer withdrew for a valid reason.
 However, if a trial is near or in progress, the new lawyer must not let unpaid fees interfere
with representing the client.

Chapter 11: Duty to Others

Lawyers owe duties to others, in addition to their primary duty to the client. These include duties to
the administration of justice, other legal professionals, and the Law Society.

1. Duty to the Law Society

 Lawyers and paralegals practice law because they meet the Law Society’s requirements for
competence and responsibility.
 By accepting a license, they agree to follow the Law Society’s rules.
 Lawyers must assist the Law Society in protecting the public from improper conduct.
 The lawyer’s duties to the Law Society include:
▪ Responding quickly and completely to the Law Society.
▪ Helping prevent unauthorized practice of law.
▪ Getting permission to work with or hire someone whose license has been revoked or
suspended.
▪ Stopping practice if the license is suspended or restricted.
▪ Following the disciplinary authority of the Law Society.

1.1 Responding promptly and completely — r. 7.1-1

 Lawyers must respond quickly and completely to any communication from the Law Society.
  Failing to respond is a breach of the Rules and can lead to disciplinary action.
 Ignoring an inquiry from the Law Society can lead to a discipline hearing, which is more
time-consuming than responding properly.

1.2 Unauthorized practice of law or provision of legal services — r. 7.6-1 and commentary

 Lawyers must prevent unauthorized people from practicing law or providing legal services.
 Unlicensed individuals are not controlled by the Law Society, which means clients are not
protected in the same way.
 Lawyers must report any unlicensed individuals practicing law or providing legal services to
the Law Society.

1.3 Working with or employing unauthorized persons — r. 7.6-1.1

 Lawyers cannot hire, partner with, or share office space with someone whose license has been
revoked or suspended without the Law Society's approval.
 The rule applies whether the person’s license was revoked or voluntarily given up.
 The purpose of the rule is to protect the public from unlicensed individuals providing legal
services.

1.4 License suspended or restricted, undertaking not to practice law — rr. 7.6-1.2–7.6-1.4; By-Law
7.1, Part II; By-Law 9, Part II.1

 If a lawyer’s license is suspended or restricted, they must comply with the restriction and stop
practicing law.
 Lawyers whose license is suspended cannot practice or represent themselves as lawyers.
 Suspended lawyers must inform clients about their status and have another lawyer take over
any open client files.

1.5 Disciplinary authority — rr. 1.1-1 and 2.1-1 and commentary and s. 7.8.2

 The Law Society can regulate and discipline lawyers, no matter where the lawyer practices.
 Lawyers may be disciplined for professional misconduct or conduct unbecoming of a lawyer.
 "Professional misconduct" includes actions like breaking the Rules or acting dishonestly with
client money.
 "Conduct unbecoming" includes personal actions, like committing a crime that affects a
lawyer’s trustworthiness.
 Lawyers should follow both the letter and spirit of the Rules.
 If personal behavior undermines a client’s trust, the Law Society may take action, even if it
happens outside of work.

2. Duty to the legal professions

 Lawyers must also follow rules that protect the reputation of the legal profession. These
duties include:
▪ Reporting misconduct by licensees.
▪ Encouraging clients to report misconduct.
▪ Reporting criminal charges or convictions.
▪ Reporting errors or mistakes.

2.1 Reporting misconduct — r. 7.1-3 and commentary

  Lawyers must help the Law Society protect the public by reporting serious misconduct by
other licensees.
 A lawyer must report actions like:
▪ Misuse of client trust money.
▪ Abandoning a practice.
▪ Involvement in serious criminal activity.
▪ Dishonesty, incompetence, or conduct that harms clients.
 Lawyers should not report misconduct with malice.
 The duty to report applies to a lawyer’s own conduct and others'.
 Lawyers unsure about reporting should seek advice from the Law Society.

2.2 Encouraging clients to report dishonest conduct — rr. 7.1-4–7.1-4.3

 If a client has a complaint about a dishonest licensee, the lawyer must encourage them to
report it to the Law Society.
 If the client refuses, the lawyer must:
▪ Inform the client about the Law Society’s Compensation Fund.
▪ Get the client’s written instructions to proceed privately.
▪ Warn the client about the criminal consequences of concealing an offence.
▪ If the client insists on a private solution that violates the law, the lawyer must withdraw
from the case.

2.3 Reporting Criminal Charges or Convictions

Licensees must report themselves to the Law Society if certain charges are laid against them. This
duty is under s. 2 of By-Law 8, made under the Act.

1. Notification Requirement
Licensees must send written notice to the Law Society if charged with:
o An indictable offence under the Criminal Code.
o An offence under the Controlled Drugs and Substances Act.
o An offence under the Income Tax Act (Canada) or provincial income tax laws, where
dishonesty is alleged or the charge relates to professional business.
o An offence under provincial or territorial securities laws, where dishonesty is alleged
or the charge relates to professional business.
o Any other offence under federal or provincial laws where dishonesty is alleged or the
charge relates to professional business.
2. Definition of Indictable Offence
An indictable offence:
o Includes offences prosecuted only by indictment.
o Includes offences that may be prosecuted by indictment or as summary offences,
depending on the case.
3. Reporting Outcomes
o Lawyers must report the result of any charge mentioned above to the Law Society as
soon as possible.
4. Private Prosecution
If the charge is under s. 504 of the Criminal Code (private prosecution), lawyers must report it
only if it results in guilt or conviction.
5. Reporting Others
Lawyers do not have to report other licensees unless the criminal activity relates to their
professional practice.
2.4 Reporting Errors and Omissions

1. Client Notification
o If a lawyer makes an error that cannot be easily fixed, they must inform the client
promptly.
o They should recommend that the client get legal advice from another lawyer about
their rights.
o They should explain that they may no longer act for the client.
2. Insurer Notification
Lawyers must notify their insurer (LAWPRO® or others) if:
o There is a chance the error could lead to a claim.
o A negligence claim is made against them.
3. Cooperation with Insurer
o Assist the insurer to deal with claims quickly.
o If not fully insured, handle claims fairly without disadvantaging the client.
o If liability is clear, arrange to pay the remaining claim balance, including the
deductible.
4. Good Faith
Lawyers must cooperate with insurers while still meeting their duty to the client.

3. Duty to Lawyers and Others

3.1 Courtesy and Good Faith

 Lawyers must be polite, civil, and act in good faith with everyone they deal with.
 They must not:
o Use unfair tactics.
o Exploit another lawyer’s minor errors that do not harm their client.
o Deny reasonable requests, like adjournments, unless it affects the client’s rights.
o Record conversations secretly, even if it is legal.

3.2 Communications

 Lawyers must communicate politely and professionally.

 They must respond promptly to professional letters and fulfill their commitments on time.

3.3 Communications with Represented Persons or Organizations

 A lawyer cannot speak directly with a person represented by another lawyer unless that
lawyer agrees.
 This rule also applies to people in organizations, such as officers or decision-makers, if the
organization is represented.
 Lawyers can communicate with represented individuals about unrelated matters.
3.4 Undertakings and Trust Conditions

1. Undertakings
o An undertaking is a lawyer’s personal promise.
o Lawyers must keep all promises and meet deadlines unless stated otherwise.
2. Trust Conditions
o Once accepted, a lawyer must follow trust conditions exactly.
o Conditions should be clear and written.

3.5 Financial Obligations

 Lawyers must pay financial obligations on behalf of their clients promptly unless they clearly
state otherwise in writing.

4. Duty to Uphold Integrity

4.1 Outside Interests

 A lawyer’s personal activities must not:

o Affect their professional integrity or competence.
o Create conflicts of interest.

4.2 Public Office

 Lawyers in public office must meet high standards of conduct to maintain public trust in the
legal profession.

4.3 Public Appearances and Statements — s. 7.5

1. Lawyers may speak to the media and make public appearances as long as they do not break
their duties to clients, the legal profession, tribunals, or the justice system.
2. Lawyers must not share information with the media or make public statements about ongoing
tribunal matters if doing so could harm a party’s right to a fair trial or hearing. This includes
other involved parties, not just the lawyer’s client.
3. Lawyers should avoid making petty or unsupported criticisms of fellow legal practitioners,
tribunals, or the justice system.
4. Before speaking publicly, lawyers must ensure their statements align with their client’s
interests and their role in the case.
5. Lawyers should not use public communications about a client’s matters for self-promotion.
They must remember they cannot control how the media may edit or use their statements.
5. Duty to the Administration of Justice
Lawyers have a commitment to promote equal justice within an open and fair system. Their
responsibilities to the justice system are greater than those of private citizens. These duties include:

1. Encouraging respect for the administration of justice.

2. Disclosing whose interests they represent when seeking legislative or administrative changes.
3. Maintaining security at court facilities.
4. Clarifying their role when acting as mediators.
5. Preserving the justice system’s impartiality if returning to practice after serving as a judge.

5.1 Encouraging Respect for the Administration of Justice — rr. 5.6-1 and 7.2-1

1. Lawyers must promote public respect for the justice system and work to improve it.
2. They should avoid irresponsible remarks or criticism that may harm public confidence in the
legal system.
3. Lawyers must be cautious when commenting on judges or tribunal members since these
individuals often cannot respond publicly.
4. Lawyers should assist clients with complaints against legal practitioners but avoid uninformed
criticism of others in the legal field.

5.2 Seeking Legislative or Administrative Change — rr. 5.6-1–5.6-2

1. Lawyers should use their experience to suggest improvements to laws and legal systems.
2. Criticism or proposals must be genuine and well-reasoned.
3. Lawyers must disclose whether they represent their own interests, a client’s, or the public’s
when seeking changes.

5.3 Security of Court Facilities — r. 5.6-3

1. Lawyers must help keep court facilities safe.

2. If a lawyer believes a dangerous situation might occur, they should inform security staff and
provide details.
3. Lawyers should consider asking for extra security and notifying others who might be affected.
4. Confidential client information should not be shared unless allowed by the rules of
confidentiality.

5.4 Acting as Mediator — s. 5.7

1. A lawyer acting as a mediator must stay neutral and ensure the process is unbiased.
2. Mediation is not a lawyer-client relationship. The lawyer’s role is to help the parties reach an
agreement.
3. Parties must understand that mediation communications are not covered by lawyer-client
privilege.
4. Lawyers should encourage parties to seek independent legal advice during mediation.
5. Lawyer-mediators may provide general legal information but not specific legal advice.
6. If preparing a mediation or settlement agreement, lawyer-mediators should advise the parties
to consult independent legal counsel before signing.

5.5 Retired Judges Returning to Practice — s. 7.7

1. Former judges must follow special rules to protect the justice system’s impartiality.
2. Without special approval, former judges of higher courts (e.g., Supreme Court of Canada)
cannot appear as advocates in any court or tribunal.
 3. Judges of certain other courts are barred for three years from appearing in courts they served
on or related tribunals.
4. Exceptions to these restrictions are rare and require approval from the Law Society Tribunal.

3.7. Concealing or Altering Incriminating Evidence

 A lawyer must not hide, destroy, or change incriminating evidence.

 Incriminating evidence includes documents, electronic data, objects, or substances linked to a
crime or investigation.
 Evidence protected by solicitor-client privilege or that the lawyer believes is already available
to authorities is excluded.
 This rule does not apply if the evidence shows the innocence of a client, like an alibi.
However, the lawyer must carefully confirm if the evidence truly proves innocence.
 Lawyers are not required to possess incriminating evidence or report its existence. Possessing
illegal items could lead to charges.

Options for handling incriminating evidence:

1. Get advice from independent legal counsel.

2. Deliver evidence to law enforcement or a tribunal anonymously or directly, based on the
situation.
3. Inform the prosecution and argue about the evidence’s use or admissibility.

 A lawyer must balance loyalty to the client with their duty to justice.
 Advising a client to exercise their rights without obstructing justice is allowed.

If testing or examining evidence:

 Ensure the evidence is not destroyed or altered.

 Conduct any necessary actions without delay.

4. Dealing with Witnesses

4.1. Preparing Witnesses

 Lawyers should prepare witnesses by discussing:

o How to dress and act respectfully.
o Addressing judges, lawyers, and others properly.
o Listening carefully and answering truthfully.

4.2. Communicating with Represented Persons

 Lawyers cannot communicate with someone represented by another lawyer unless they have
permission.

4.3. Communication During Testimony

4.3.1. Lawyer’s Own Witnesses:

 During testimony, lawyers must limit communication with their own witnesses:
o During direct examination: Discuss topics not covered yet.
 o During cross-examination: Avoid discussing testimony.

4.3.2. Witnesses Called by Other Parties:

 Communication rules depend on whether the witness supports or opposes the lawyer’s case.
 For sympathetic witnesses: Communications are limited during different stages of testimony.
 For unsympathetic witnesses: Fewer restrictions apply.

5. Relations with Jurors

5.1. Communicating with Jurors

 Lawyers cannot contact jurors or potential jurors before or during a trial.

5.2. Reporting Juror Misconduct

 Lawyers must inform the court if they know a juror is connected to the case or has acted
improperly.

6. Lawyer as Witness

 A lawyer cannot act as both advocate and witness in the same case unless allowed by the
court.
 If required to testify, the lawyer must hand over the case to another lawyer.

7. Discovery Obligations

 Lawyers must help clients disclose all relevant documents and answer proper questions
during discovery.
 Lawyers must not misuse the process to cause unnecessary delays or harm the other side.
 If a client insists on misuse, the lawyer must withdraw from the case.

8. Agreement on Guilty Plea — rr. 5.1-7 to 5.1-8

1. A lawyer may discuss how to resolve a criminal case with the prosecutor unless the client
instructs otherwise.
2. A lawyer can make a guilty plea agreement if the requirements in r. 5.1-8 are met after proper
investigation.
3. Before agreeing to a guilty plea, the lawyer must:
o Explain the chances of acquittal or guilt to the client.
o Explain how a guilty plea may affect the client’s life (e.g., job opportunities or
travel).
o Inform the client that the court may reject the plea agreement and decide differently.
4. The lawyer must ensure the client fully understands the consequences of pleading guilty.
 5. If the client decides to agree to a guilty plea, the lawyer must ensure the client voluntarily:
o Admits the facts and intent behind the offense.
o Instructs the lawyer to proceed with the agreement.
6. The client’s admission and instructions should ideally be in writing.
7. A lawyer cannot assist a client with a guilty plea if the client denies involvement but hopes
for a lesser sentence.

13. Practice Management

1. Permitted Business Structures and Practice Arrangements — By-Law 7

1. Lawyers can operate through:

o Sole practice or proprietorship.
o General partnerships.
 o Limited liability partnerships (LLPs).
o Interprovincial law firms.
o Civil society organizations (CSOs).
o Professional corporations.
2. Multi-discipline partnerships, CSOs, and affiliations may involve non-lawyer professionals,
following By-Law 7 requirements.

2. Making Legal Services Available — s. 4.1

1. Legal services must be offered efficiently and conveniently.

2. Lawyers must not use means that are:
o False or misleading.
o Coercive, harassing, or exploitative.
o Aimed at persuading someone already represented.
o Damaging to the profession’s reputation.
3. Lawyers must market and advertise truthfully while following the Rules to avoid misleading
clients or the public.

2.1 Marketing Legal Services — rr. 4.2-0 to 4.2-1.1

1. Marketing includes firm names, letterheads, business cards, logos, and advertisements.
2. Marketing must be:
o True, accurate, and verifiable.
o Not misleading, confusing, or deceptive.
o Professional and in the public’s best interest.
3. Marketing must state if the person offering services is a lawyer or paralegal.

2.1.1 Marketing Prohibitions — rr. 4.2-1, 4.2-1.2

1. Lawyers cannot advertise second-opinion services.

2. Prohibited practices include:
o “Bait and switch” tactics.
o Failure to disclose referral practices.
o Advertising services the lawyer cannot provide competently.
o Using awards, rankings, or endorsements that are misleading or not based on proper
evaluation.
2.1.2 Unprofessional Marketing Practices — rr. 4.1-2, 4.2-1

1. Marketing must be professional and respect human rights laws.

2. Unacceptable practices include using violent, racist, or offensive content and exploiting
vulnerable groups.
3. Lawyers are encouraged to adopt inclusive marketing practices like using multiple languages
and advertising services for underserved communities.

2.1.3 Contingency Fee Marketing Requirements — rr. 3.6-2.2, 4.2-2.2

1. Lawyers must publish their maximum contingency fee rate online or disclose it to clients
during initial contact.
2. Higher fees can only be charged if clearly disclosed and published.
3. Certain exemptions apply, such as class actions or organizational clients.

2.2 Advertising of Fees — r. 4.2-2

1. Lawyers may advertise fees if:

o The services covered are clear.
o Additional charges (e.g., taxes) are disclosed.
o The fees advertised are strictly followed.

2.3 Advertising Residential Real Estate Services — r. 4.2-2.1

1. Advertised fees must include:

o All legal fees, disbursements, and standard costs, excluding HST and specific
permitted disbursements.
2. Advertisements must clearly state exclusions and apply uniformly.
3. Lawyers must meet the standard of competence for all services provided at advertised rates.

2.4 Advertising Nature of Practice

1. A lawyer’s marketing materials can include details to help potential clients choose a lawyer
with the right skills and knowledge for their case.
2. A lawyer may advertise:
o Areas of practice they prefer.
o That their work is limited to a specific area of law.
o Their expertise or experience in a legal field.
3. Any claims must be accurate and not misleading.
4. Rule 4.3-1 says lawyers cannot claim to be specialists in a field unless certified by the Law
Society.
5. By-Law 15, Section 20(2) prohibits uncertified lawyers from using titles that suggest
specialization.

3. File Management

1. General Principles:
o File management involves organizing client matters for timely and effective service.
o Files may be electronic, paper, or both.
o A proper system helps with confidentiality and conflict avoidance.
2. Essential Systems:
 o Record and store information to verify client identities (per By-Law 7.1).
o Organize key client and matter details.
o Open and maintain active files for each matter.
o Check for conflicts and limitation periods.
o Safeguard client property securely.
o Review and update systems to meet new standards.
o Comply with record-keeping and bookkeeping requirements.
3. Additional Tools:
o Manage electronic and hardcopy documents.
o Track undertakings and third-party obligations.

3.1 Conflict Checking

1. Lawyers must not act in cases of conflict unless allowed under Rule 3.4.
2. Conflict checks should occur:
o At first contact with the client.
o After initial interviews or when new details emerge.
o Upon retention or when new parties join a case.
o When a lawyer changes firms or ownership changes occur.
3. Lawyers should document conflict checks with details such as:
o Date, names checked, and the checker’s identity.
4. Conflict Names to Track:
o Current and former clients, adverse parties, and connected individuals.
o Company officers, directors, owners, and affiliates.
o Related parties like relatives or business partners.
5. Conflict Checking Systems:
o Manual systems use index cards for tracking.
o Computerized systems allow faster and larger-scale management.
o Every system must maintain records of current, past, and prospective clients.

3.2 Opening Files, File Organization, and Storage

1. A file is opened when:

o A prospective client provides confidential information.
o A lawyer is retained for any new or related matter.
2. Key Steps:
o Record details of communications in memos or letters.
o Use a checklist to gather essential information.
o Assign distinct file names and numbers.
o Organize contents by type (e.g., communications, agreements, research).
3. Active files should be stored securely and be easily retrievable.

3.3 Closing, Retaining, and Disposing of Files

1. Close files only after completing all related matters.

2. Use a closing checklist to:
 o Assign a closed file code.
o Store files separately and securely.
o Protect confidentiality and organize for retrieval.
3. Before closing, remove unnecessary documents and return the client’s originals.
4. Assign retention periods for closed files and decide on proper destruction methods.

3.4 Documents Retained by the Lawyer

1. Documents created for the lawyer’s benefit belong to the lawyer, such as:
o Working notes and summaries.
o Copies of correspondence and client documents.
o Accounting records related to client matters.
2. Retain documents that protect the lawyer in cases of disputes or allegations, like:
o Engagement letters, instructions, and correspondence.
o Drafts and offers to settle.
3. Store and maintain files according to relevant legal and professional standards.

4. Time Management

Timeliness is key to client service and managing a law practice. Lawyers who manage their time well
are more productive and meet client needs in a cost-effective way. Good time management involves
time planning, reminders, and time docketing.

4.1 Time Planning

Lawyers should organize their time to work efficiently and complete tasks promptly. Time should be
allocated to specific tasks daily, weekly, monthly, and yearly.

Daily tasks include:

 Reviewing tasks for the day.

 Returning phone calls and emails.
 Reviewing and responding to correspondence.
 Recording or assigning time docket entries to client files.
 Addressing urgent or new issues.

Weekly or monthly tasks include:

 Reviewing tasks for the week or month.

 Meeting with clients.
 Working on client files without interruptions (e.g., drafting or research).
 Scheduling external appointments (e.g., court appearances).
 Meeting with staff and colleagues.
 Handling administrative tasks.
 Managing accounting, bookkeeping, and filing needs.
 Reviewing open client files, usually monthly.

Yearly tasks include:

 Attending continuing education and professional development to maintain competence and

meet CPD requirements.
Additional tips:

 Limit interruptions by controlling phone calls and meetings.

 Focus on one task at a time.
 Delegate tasks to supervised staff.
 Avoid procrastination and unreasonable requests.
 Track time for efficiency.
 Use agendas, virtual meeting tools, and organized files to save time.

4.2 Reminder Systems

Reminder systems help lawyers keep track of important deadlines like filing dates or court
appearances. Missing deadlines can harm clients and lead to complaints or suspensions.

Key tools:

 To-do lists for priorities.

 Desk diaries or calendars for appointments and deadlines.
 Centralized reminder systems (manual or computerized) to:
o Flag deadlines.
o Follow up on reminders.
o Track steps in ongoing client files.

Backup reminder systems daily to prevent data loss. Lawyers are responsible for meeting deadlines,
even if reminders are managed by staff. Periodically review all open client files and inventory them as
needed.

4.3 Time Docketing

Time docketing tracks the time lawyers spend on client matters. Each docket entry includes the client
name, file number, date, time spent, and work description.

Benefits of time docketing:

 Ensures accurate billing.

 Helps justify fees if questioned.
 Tracks non-billable hours to monitor productivity.

System requirements:

 Record services performed.

 Accumulate total time per file.
 Track billable and non-billable time.
 Generate reports and statements.

Time dockets should be detailed, updated daily, and integrated with accounting and billing software
when using computerized systems.

5. Use of Technology
Lawyers must be technologically competent to meet client needs. The required level of competence
depends on the technology's relevance and availability. Technology helps manage files, time, and
services efficiently.

5.1 To Offer and Provide Legal Services

Lawyers may use websites, blogs, social media, and email to advertise services. When doing so, they
must:

 Properly identify themselves and their firm.

 Avoid spamming.
 Match advertisements to appropriate forums.

When providing legal advice electronically, lawyers must:

 Clearly indicate their role.

 Avoid conflicts of interest.
 Protect confidentiality (e.g., encryption).
 Avoid creating unintentional lawyer-client relationships.
 Comply with rules in other jurisdictions when necessary.

5.2 For Practice Management

Technology tools lawyers may use include:

 Legal research databases (e.g., CanLII).

 Software for specific areas like real estate or litigation.
 Document management systems.
 Productivity tools for writing and scheduling.
 Communication tools like email and videoconferencing.
 Systems for tracking conflicts of interest, deadlines, and billing.

5.3 Special Considerations

Lawyers must ensure technology use complies with confidentiality rules.

Security measures include:

 Using passwords, firewalls, and encryption.

 Backing up data regularly and storing it securely.
 Preventing unauthorized access to files or data.

Lawyers must also manage risks like data loss or technology obsolescence. Regularly review and
update software, maintain disaster recovery plans, and protect client information during travel.

6. Managing Financial Responsibilities

Managing a law practice includes handling financial responsibilities. Lawyers must:

 Meet financial obligations to clients.

 Fulfill financial duties related to their practice.
  Comply with financial reporting rules.

Failing to meet obligations can lead to disciplinary actions. Lawyers should seek advice if unsure of
their legal responsibilities.

6.1 On Behalf of the Client

1. Lawyers must pay all financial obligations made on behalf of clients unless they clearly state
in writing beforehand that they are not responsible for these payments.
2. These obligations include costs for filing fees, transcripts, and third-party services needed for
the client’s case.
3. Lawyers should get the client’s consent before hiring a third party and confirm the terms in
writing.
4. The written agreement should include the services provided, fees, and who will pay.
5. Payment may be made by the client directly or by the lawyer on the client’s behalf.
6. If a lawyer states in writing that they are not responsible for third-party payments and the
client does not pay, the lawyer should help make payment arrangements if possible.
7. Lawyers should estimate costs, including third-party fees, and hold funds in trust if necessary
to ensure payments can be made.
8. If the client discharges the lawyer or the lawyer withdraws, the lawyer must inform the third
party and provide details of the client’s new lawyer.

6.2 To Operate a Law Practice

1. Lawyers must pay for the costs of running their practice, including:
o Professional regulation fees
o Liability insurance premiums
o Office rent, utilities, and supplies
o Employee salaries
o Software and bank fees
2. A well-run practice requires proper accounting, billing, and payment systems.

6.3 Reporting and Compliance Requirements

1. Lawyers must submit an annual report to the Law Society about client and general account
records, as per By-Law 8.
2. Lawyers must maintain accurate records of client funds as required by By-Law 9.
3. Income tax and HST reports must be submitted to the Canada Revenue Agency.
4. For detailed requirements, refer to Chapter 14 of the Study Materials.

7. Managing Supervisory Responsibilities

7.1 Hiring Support Staff

1. Lawyers must hire trustworthy staff and verify their experience and references.
2. When hiring for roles involving money, a lawyer may check criminal records and credit
reports with consent.
3. Hiring processes must follow privacy laws, the Rules, and human rights laws.

7.2 Training

1. Lawyers must train non-licensee staff before delegating tasks.

2. Training should cover:
 oTasks allowed and not allowed
oClient confidentiality and cybersecurity
oConflict of interest and proper record keeping
3. Lawyers should document office policies in a manual for training and reference.

7.3 Delegation and Supervision

1. Lawyers are responsible for tasks delegated to staff and must supervise them appropriately.
2. Staff may not perform tasks reserved for lawyers, such as:
o Giving legal advice
o Finalizing client matters
o Signing non-routine correspondence
3. Staff must identify themselves as non-lawyers when communicating with others.

7.4 Supervision in Real Estate Matters

1. Lawyers must ensure non-lawyer employees using e-reg® have personal security packages
and follow security rules.
2. Only lawyers may approve or sign certain documents, such as title opinions or requisition
letters.
3. Non-lawyers may assist with title insurance under the lawyer’s supervision but may not give
legal opinions.

7.5 Supervision of Paralegals

1. Lawyers must supervise paralegals they employ, even though paralegals have independent
responsibilities.
2. Paralegals must agree to the lawyer’s control over their work within the lawyer’s practice.

7.6 Multi-discipline Practices — s. 7.8.1

A lawyer working with non-legal professionals in a multi-discipline practice must ensure these non-
lawyers follow the Rules and ethical principles lawyers must obey. This includes upholding the
integrity of the legal profession and avoiding conflicts of interest.

7.7 Supervision of Affiliated Entities — By-Law 7.1, s. 3(2)

A lawyer cannot let staff in an affiliated entity handle legal tasks for a client unless the client agrees.
If the client agrees:

 It must be confirmed in writing, with all parties signing the same or separate documents.
 If agreed orally, each consenting person must receive written confirmation as soon as
possible.

8. Managing Administrative and Business Aspects of the Practice

Managing a law practice includes meeting the Law Society’s administrative rules. Not doing so can
lead to suspension. Lawyers must:

 Notify the Law Society of changes to their name, status, contact information, and trust
accounts (By-Law 8).
 Report changes in business structure or practice arrangements (By-Law 7).
 Pay the annual fee by March 31 (By-Law 5).
 Submit the annual report by March 31 (By-Law 8).
  Keep valid liability insurance (By-Law 6).
 Complete required CPD hours by December 31 and report them by March 31 of the next year
(By-Law 6.1).
 Follow rules for business structure (By-Law 7).
 Meet rules for bankruptcy or offences (By-Law 8).

Lawyers may also need to meet other administrative rules, like business registrations or insurance
filings. Failing to follow these can harm the practice.

To protect the practice and clients, lawyers should have contingency plans for events like natural
disasters, illness, or death. Plans should cover:

 Unexpected interruptions (e.g., office disaster, theft, or pandemics).

 Planned absences (e.g., vacations or medical leave).
 Long-term absences (e.g., disability or death).

Lawyers should consider giving a power of attorney to another lawyer to manage the practice in their
absence. They should also include instructions in their will about how to handle the practice if they
pass away.

9. Managing Mental Health and Wellness

The Law Society supports lawyers’ mental health and wellness. Mental health helps lawyers handle
stress, work effectively, and contribute to their communities.

Lawyers face stress from responsibilities, competition, complex laws, and balancing work and life.
Managing mental health helps protect clients and maintain professional conduct.

9.1 Strategies to Improve Mental Health and Well-being

Lawyers can improve mental health by:

 Eating a balanced diet.

 Exercising regularly.
 Practicing mindfulness.
 Building support networks.
 Getting enough sleep.
 Avoiding alcohol or drug misuse.

Workplace strategies include:

 Taking breaks and vacations.

 Delegating tasks.
 Joining support groups.
 Staying connected with colleagues, friends, and family.

Lawyers can also seek training on time management, delegation, and balancing life and work. The
Law Society offers support through its Coach and Advisor Network.
9.2 Mental Health Supports and Resources
Lawyers struggling with mental health or addiction should seek help early. Programs like the Member
Assistance Program (MAP) offer confidential support for lawyers, law students, and their families.
The Law Society also provides resources on its website to support mental well-being.

9.3 Mental Health and Stigma

Stigma about mental illness can stop lawyers from seeking help. Lawyers can reduce stigma by:

 Promoting work-life balance.

 Creating respectful workplaces.
 Educating staff about mental health.
 Encouraging open conversations about these issues.

10. Managing Responsibilities Under PIPEDA

10.1 Introduction
PIPEDA applies to organizations that collect, use, or share personal information in commercial
activities. Lawyers must follow PIPEDA rules when handling personal information.

PIPEDA has 10 principles:

1. Accountability
2. Identifying purposes
3. Consent
4. Limiting collection
5. Limiting use, disclosure, and retention
6. Accuracy
7. Safeguards
8. Openness
9. Individual access
10. Challenging compliance

PIPEDA may not apply in provinces with similar laws, like Quebec or British Columbia.

10.2 PIPEDA and a Law Practice

10.2.1 Application
Lawyers collect personal information as part of their practice. Lawyers must comply with PIPEDA or
similar privacy laws. Firms should have a privacy policy to inform clients about how their
information is handled.

10.2.2 Collection of Personal Information

Lawyers must explain why they collect personal information and get the client’s consent. Consent can
be express (direct agreement) or implied (e.g., contacting the lawyer for services).
10.2.3 Use and Disclosure of Personal Information
Lawyers must tell clients how their information will be used and get consent for secondary purposes,
like marketing. For sensitive information, express consent is best.

10.2.4 Access to Personal Information

Clients can ask for access to their information. Lawyers must respond within 30 days, unless an
exception applies (e.g., solicitor-client privilege).

10.2.5 Retention and Security of Personal Information

Lawyers should only keep personal information as long as necessary. Information must be stored
securely, and access should be limited. If using external storage, lawyers remain responsible for the
security of the information.

10.2.6 Destruction of Personal Information

Personal information must be destroyed securely. Lawyers should also keep a record of destroyed
files, including details like the client’s name and file destruction date.

10.3 Breaches of Security Safeguards

If a data breach occurs, lawyers must:

1. Contain the breach.

2. Assess risks.
3. Notify affected parties if needed.
4. Prevent future breaches through audits and improvements.
Chapter 14: Accounting, Bank Accounts, and Bookkeeping (Simplified)

Understanding accounting and record-keeping is important for running a successful law

practice. Lawyers must follow the Rules of Professional Conduct (Rules) and By-Law 9 of the Law
Society Act (Act). Lawyers can manage their own records or delegate the work but are always
responsible for ensuring that funds are properly recorded and books are maintained.

1. Accounting in a Law Practice

1. Lawyers must use proper accounting methods to run their practice effectively.
o This includes recording transactions, reviewing records, and preparing financial
statements.
o Ignoring these duties can lead to client issues or discipline by the Law Society.

1.1 Types of Accounting Systems

 Accounting systems help manage finances in a law practice. Types include:

o Manual double-entry: Simple and cheap but time-consuming and prone to errors.
o One-write: Easy to use and posts to sub-ledgers but can still be slow and error-prone.
o Spreadsheet software: Automates calculations but requires training and can have
formula errors.
o General accounting software: Automates many tasks but isn’t designed for trust
accounting and needs training.
o Legal accounting software: Tailored for law practices but expensive and requires
training.
 Lawyers should choose a system based on:
o The number of transactions.
o Who will manage the records.
o Cost and knowledge of bookkeeping or software.
 Lawyers using electronic systems must ensure they can print required records and secure
backups.

2. Bank Accounts in a Law Practice

1. Lawyers can open as many accounts as needed for their practice.

o Most will have a general account for business funds and a trust account for client
funds.
o Mixing client funds with firm funds is not allowed.
2. Some lawyers (e.g., those in civil society organizations) cannot operate trust accounts.

3. General Account

3.1 Depositing Money

 Payments for services already billed go into the general account.

 Lawyers should bill clients regularly to maintain cash flow and manage client expectations.
3.2 Withdrawing Money

 Expenses (e.g., rent, salaries, office supplies, HST remittance) are paid from the general
account.
 Withdrawals must be documented as required under By-Law 9.

3.3 Harmonized Sales Tax (HST)

 Lawyers must register for HST if their revenue exceeds a certain amount.
 HST on client payments must be properly recorded and deposited into the general account.

4. Trust Account

4.1 Opening a Trust Account

 A trust account is used to hold client funds.

 Requirements for opening a trust account include:
o Proper designation of the account as a trust account.
o Ensuring no fees are taken from client funds.

4.1.1 Types of Trust Accounts

 Mixed Trust Account: Combines funds from multiple clients, with interest sent to the Law
Foundation of Ontario (LFO).
 Separate Interest-Bearing Trust Account: Holds funds for a single client, with interest
given to the client.

4.1.2 Financial Institutions

 Lawyers can choose from specific banks, trust companies, or credit unions.
 Financial institutions must provide the records required under By-Law 9.

4.1.3 Sharing Trust Accounts

 A trust account can only be operated by the lawyer or law firm.

 Sole practitioners sharing office space cannot share trust accounts.

4.2 Depositing to the Trust Account (Trust Receipts)

Lawyers must deposit the following into a trust account:

1. Money given by a client as a retainer for legal services or to cover future fees.
2. Money given to cover expenses the lawyer will pay on the client’s behalf.
3. Money given to the lawyer to hold until the client gives instructions.
4. Settlement funds belonging to the client that the lawyer receives from another party.
5. Settlement funds belonging to another party received from the client.
6. Shared money (e.g., overpayments by the client).
7. Money withdrawn from the trust account by mistake.
Every deposit must be recorded in the "trust receipts journal" and the client's individual "trust ledger."
Lawyers must not deposit unrelated funds or keep unnecessary funds in the trust account for long
periods.

Lawyers can avoid depositing to a mixed trust account if:

 The client requests in writing that the funds go into a separate account.
 The funds are deposited into an account held in the client's name or another designated
person.
 The funds are immediately paid to the client or someone on their behalf.

Records of these transactions must comply with By-Law 9.

4.2.1 Methods for Depositing Funds to Trust

Lawyers can deposit funds using:

 In-person deposits at a bank.

 Automated teller machines (ATM) for deposits only.
 Remote deposit capture (RDC) apps on mobile devices.
 Wire or electronic transfers.

Lawyers must keep proof of the transaction, like deposit slips, ATM receipts, or transfer
confirmations.

4.2.2 When to Deposit to Trust

Trust funds must be deposited by the end of the next banking day after receiving them.

4.3 Withdrawing from Trust (Trust Disbursements)

Lawyers cannot withdraw more money than held for a specific client. Withdrawals must comply with
By-Law 9 to avoid misuse. All withdrawals must be recorded in the "trust disbursements journal."

4.3.1 Reasons for Withdrawal from Trust

Lawyers can withdraw trust funds to:

1. Pay a client or someone on their behalf.

2. Reimburse themselves for expenses paid for a client.
3. Collect fees for services performed after issuing a bill.
4. Transfer funds to another trust account for the client.
5. Correct errors, such as mistakenly deposited funds.

4.3.2 Methods for Withdrawal from Trust

Withdrawals can be made by:
  Cheques signed by the lawyer or authorized personnel.
 Transfers to the lawyer's general account (with written authorization).
 Electronic transfers (following By-Law 9).

Lawyers must keep proper records and avoid using ATMs for trust withdrawals.

4.3.3 Authorized Individuals for Trust Withdrawals

Only lawyers or authorized personnel can operate the trust account. For emergencies or absences,
lawyers should arrange for another licensed and insured professional to have signing authority. Blank
trust cheques must be secured, and unauthorized access must be prevented.

4.3.4 Correcting Withdrawal Errors

If funds are withdrawn by mistake:

1. Correct the error and return the funds immediately.

2. Obtain written proof from the bank when correcting errors caused by the financial institution.

4.4 Unclaimed Trust Funds

Lawyers should regularly review client trust ledgers. If a trust cheque is stale-dated:

1. Stop payment on the cheque.

2. Re-enter the amount into the client's ledger.
3. Reissue the cheque, if appropriate.

If funds remain unclaimed for two years, lawyers can transfer them to the Law Society’s Unclaimed
Trust Fund after reasonable efforts to locate the client.

5. Receiving Money from Clients

Lawyers can accept payments through:

1. Electronic or wire transfer.

2. Cash (up to $7,500 CAD).
3. Credit or debit cards.
4. Personal or certified cheques.
5. Bank drafts or money orders.

Payments must comply with By-Law 9 and money laundering regulations.

5.1 Restrictions on accepting cash

To govern the legal professions, the Law Society has set rules to prevent money laundering. These
rules are in Part III of By-Law 9. The term “cash” includes:
  Current coins as defined by the Currency Act;
 Bank notes issued by the Bank of Canada;
 Foreign coins or bank notes.

A lawyer cannot accept cash over $7,500 Canadian for any client file. This limit also applies to
foreign currency. If foreign cash is received, it must be converted to Canadian funds. The total amount
of foreign currency must not exceed $7,500. If it does, the lawyer can only accept up to $7,500 in
cash, and the rest must be paid through other methods, like credit or debit card or cheque.

The cash limit applies when the lawyer:

 Receives or pays funds;

 Buys or sells securities, real properties, or business assets;
 Transfers funds by any means.

Exceptions: A lawyer may accept more than $7,500 in cash if it is for:

 Fees, disbursements, or expenses, including a money retainer;

 Paying a fine, penalty, or bail;
 Payments from law enforcement or other Crown agents;
 Payments from public bodies, banks, or certain financial institutions.

If the lawyer accepts cash for fees, disbursements, expenses, or bail, they may need to refund some of
the amount in cash. This can be done by withdrawing from the trust or general account. When
refunding, the lawyer should get a receipt or have a witness.

Lawyers may refuse to accept cash. Accepting cash requires extra record-keeping.

5.2 Use of credit and debit cards

Lawyers can accept credit or debit card payments. Money retainers must go into the trust account,
while payments for services rendered must go into the general account. Any fees or charges for using
credit or debit cards must be paid from the general account.

If a lawyer’s bank allows only one account for card payments, the lawyer must choose:

 General account for payments of services already billed;

 Trust account for money retainers.

The lawyer cannot deposit everything into one account and transfer the amounts later. Lawyers may
need two point-of-sale (POS) machines to accept payments for both types. If using a machine linked
to both accounts, internal controls must ensure the correct account is selected.

5.3 Clearance periods

Lawyers must understand the clearance period for funds in trust. This is the time it takes for funds to
be available for use. Clearance periods vary by the payment method and bank. For example, personal
cheques may take 5 to 10 business days to clear, while certified cheques clear faster.

If a cheque bounces, the lawyer’s bank will reverse the deposit. The lawyer must cover any charges
from the general account. If a trust cheque is already cashed, the lawyer must reimburse the trust
account with their own funds. The lawyer must also ask for replacement payment from the client.
If a lawyer needs to disburse funds quickly, they should check with their bank for the best course of
action. They must also regularly review trust accounts to ensure funds are available for disbursements.

6. Record-keeping requirements

Part V of By-Law 9 sets the rules for keeping records. These records track clients' money held by the
lawyer. Lawyers must record the money received and disbursed for each client and keep the trust
balance. They must also keep bank statements as independent records.

Keeping accurate records is essential for making good financial decisions and meeting reporting
obligations. Lawyers should keep records for six years, including the current year and the previous
six.

Lawyers who don’t know how to maintain records may delegate this to trained staff or hire an
accountant. They must supervise staff to ensure records are accurate.

6.1 Records must be current, permanent, and available in paper copy

Lawyers must keep their records up to date. They should post entries daily. If the lawyer writes
records by hand, they must be permanent (in ink). Electronic records are allowed but must be
available in paper form upon request. Lawyers should print records regularly to avoid losing them due
to technical issues.

6.2 General account

For the general account, lawyers must keep:

 A receipts journal;
 A disbursements journal;
 A fees book or file of client billings;
 Source documents for these records.

Lawyers should also keep a clients' general ledger, though it is not required. Most general account
records must be kept for six years. This means the current year and the previous six calendar years.

6.2.1 General receipts journal (6 years)

The general receipts journal tracks money the lawyer receives, except money held in trust for clients.
This is money that belongs to the lawyer or law firm. For each amount received, the lawyer must
record:

 The date money was received.

 The method of receiving the money (e.g., cash, cheque, bank draft, debit card).
 The amount received.
 The person from whom the money was received.

6.2.2 General disbursements journal (6 years)

The general disbursements journal records money spent by the lawyer or law firm, except money in
trust for clients. For each amount disbursed, the lawyer must record:

 The date the payment was made.

 The method of payment (e.g., cheque, electronic transfer, money order).
 The reference number of the payment method (e.g., cheque number, Internet banking
reference number, money order number).
  The amount paid.
 The person to whom the payment was made.

6.2.3 Fees book (6 years)

The fees book contains entries for each bill or account sent to clients. Lawyers must keep either a fees
book or a file with copies of client bills, ordered by date. In the fees book, the lawyer must record:

 The amount of fees charged to the client.

 The amount of other billings (e.g., disbursements and HST).
 The date of billing.
 The client’s name.

Lawyers may keep both a fees book and a file of client bills. It is also a good idea to keep a copy of
the client’s bills in the client’s file. If the lawyer uses a fees book, the billings should also be entered
in the clients' general ledger. The fees book should also track the total HST receivable on fees.

6.2.4 Clients’ general ledger (optional)

The clients’ general ledger is optional. It lists every client and tracks all expenses, invoices, and
payments for each client. The balance shows how much money the client owes the lawyer. This
includes unpaid fee and disbursement billings and unbilled disbursements.
Lawyers should review the ledger monthly to prepare bills and check for any negative balances. A
negative balance in the receipts journal means the lawyer received an overpayment or the payment
was transferred from trust without being billed. A negative balance in the disbursements journal
means the client was billed for a disbursement not yet paid.

6.2.5 Monthly general reconciliation (optional)

Lawyers may choose to do a monthly reconciliation of their general account, but it is not required.
The reconciliation involves checking all entries in the account statement against records to ensure
they match. It helps confirm that the statement from the bank is correct and allows the lawyer to track
account activities and prevent unauthorized spending. A monthly general reconciliation follows the
same process as a trust reconciliation.

6.3 Trust account

For the trust account, the lawyer must keep:

 A trust receipts journal.

 A trust disbursements journal.
 A clients’ trust ledger with individual client accounts.
 A trust transfer record.
 Monthly trust comparisons.
 Trust account source documents.

These records are required. The trust receipts and disbursements can be kept separately or together.
When kept together, they are called the “trust bank journal.” All trust records must be kept for 10
years, except the trust transfer record, which is kept for 6 years.

6.3.1 Trust receipts journal (10 years)

The trust receipts journal tracks money received from clients in trust. This is money the lawyer holds
for clients. For each amount received, the lawyer must record:

 The date money was received.

 The method of receiving the money (e.g., cash, cheque, bank draft, debit card).
 The person or institution from whom the money was received.
 The amount received.
  The client’s name for whom the money was received.
 The reason the money was received in trust (e.g., payment or replenishment of a retainer).

6.3.2 Trust disbursements journal (10 years)

The trust disbursements journal tracks payments made from trust for clients. This is money the lawyer
spends on behalf of clients. For each payment, the lawyer must record:

 The date the payment was made.

 The method used for the payment (e.g., cheque, electronic transfer, money order).
 The reference number for the payment method (e.g., cheque number, Internet banking
reference number).
 The amount paid.
 The person to whom the payment was made.
 The client’s name for whom the payment was made.
 The reason the payment was made from trust (e.g., disbursement or fee).

6.3.3 Clients’ trust ledger (10 years)

The clients’ trust ledger tracks money held in trust for each client separately. For each client, it shows:

 The amount received in trust.

 The amount spent from trust on behalf of the client.
 The remaining balance in trust.

If representing a client in more than one matter, the lawyer may have multiple trust ledger accounts
for that client. The ledger helps avoid spending more than the client has in trust.

6.3.4 Trust transfer record (6 years)

The trust transfer record shows any transfers between client trust ledger accounts and the reason for
each transfer. Transfers may occur when a lawyer represents more than one party in a joint retainer or
when correcting an error.

6.3.5 Monthly trust comparison (10 years)

The monthly trust comparison is a required record. It ensures the lawyer’s trust accounting records
match the bank’s trust account statements. The lawyer must compare the reconciled bank balance with
the total from the client trust listing. This comparison must be completed by the 25th of each month.

(a) Trust reconciliation

The trust reconciliation ensures that the lawyer’s trust account records match the bank’s trust account
statements. It checks for errors and outstanding items, such as uncashed cheques or deposits made on
the last day of the month.

(b) Client trust listing

The client trust listing shows all clients for whom the lawyer holds trust money. It lists each client’s
trust balance as of the last day of the month.

(c) The comparison

The lawyer must compare the reconciled bank balance with the total client trust listing. If there is a
discrepancy, the lawyer must investigate and correct it. The lawyer should also make a note of the
discrepancy in the client’s file.

6.4 Other record-keeping requirements

In addition to general and trust account records, lawyers must keep other records such as:
  Source documents.
 A duplicate cash receipts journal.
 Referral fee records.
 A valuable property record.

These records are required under By-Law 9.

6.4.1 Source Documents — General and Trust Accounts (10 years)

Lawyers must keep copies of source documents for both the general and trust accounts for 10 years.
Source documents include records that contain information entered into the lawyer's accounting books
and records. These documents can be in paper or electronic form. Examples of source documents
include:

 Cashed or cancelled cheques for general and trust accounts or electronic images of these
cheques.
 Account statements from the lawyer's financial institution for general and trust accounts.
 Passbooks for both the general and trust accounts.
 Detailed duplicate deposit slips for both accounts, either stamped by a teller or with an
attached ABM receipt.
 Copies of fee invoices to clients if the lawyer does not keep a fees book.
 Completed copies of Form 9A (Electronic Trust Transfer Requisition) with signed
confirmations for trust withdrawals via electronic transfer.

If the financial institution provides cheque images instead of original cashed cheques, the lawyer must
ensure that both the front and back of the cheque images are readable. The lawyer should save these
images on their computer or print hard copies for their records. Lawyers should also back up
electronic files regularly.

For Remote Deposit Capture (RDC) users, the lawyer must ensure that an original source document
can be provided from the RDC mobile application’s transaction history. Lawyers should also keep
copies of cheques deposited using RDC.

For duplicate deposit slips, lawyers should record:

 The date of deposit.

 The lawyer or law firm’s name (if not pre-printed).
 The bank account number (if not pre-printed).
 The source of each receipt.
 The related client (if applicable).
 The amount deposited.

Though not required, lawyers may want to keep copies of invoices paid from the general account.
This includes business expenses and payments made on behalf of clients that were later reimbursed. If
a financial institution does not provide the required source documents, the lawyer must switch to a
different institution that can meet these requirements.

6.4.2 Duplicate Cash Receipts Book (6 years)

For each cash payment the lawyer or law firm receives, they must create and keep a duplicate cash
receipt. This is required every time cash is deposited into the general or trust account. The duplicate
receipt must include:

 The date cash was received.

 The name of the person who provided the cash.
 The amount of cash received.
  The client’s name(s) for whom the cash was received.
 The file number, if applicable.
 The lawyer’s signature or an authorized designate’s signature.
 The signature of the person who gave the cash.

Lawyers should number their receipts in sequence. One copy should be given to the person who gave
the cash, and another copy should be kept with the lawyer’s records. Lawyers may choose to prepare a
third copy for the client file.

Lawyers must make reasonable efforts to obtain the signature of the person giving the cash. If the
person refuses, the lawyer should document their efforts. Lawyers should be cautious when accepting
cash from someone who does not want to sign a receipt.

Lawyers may decide not to accept cash payments or set a limit for cash payments above a certain
amount. This policy should be communicated to clients in writing before accepting retainers.

6.4.3 Referral Fee Records (6 years)

For referral fees paid or received after April 28, 2017, lawyers must record the following information:

 All referral fees received or paid.

 The date the referral fee was received or paid.
 The method of payment (e.g., cheque, electronic transfer, or money order).
 The reference number of the payment method (e.g., cheque number).
 The amount of the referral fee.
 The licensee who received or paid the referral fee.
 The client or client matter for whom the referral fee was paid.

Lawyers must keep all documents related to each referral fee transaction, including:

 The referral fee agreement.

 A copy of the client’s fee invoice showing the referral fee.
 The client’s acknowledgment of the referral fee or the lawyer’s written confirmation of the
client’s refusal.

These records must be kept for six years and must be able to be produced quickly upon request.

6.4.4 Valuable Property Record (10 years)

Lawyers must keep a record of valuable property (other than money) received and held in trust for
clients. This record helps protect the lawyer from allegations of misappropriation. Lawyers should
only hold valuable property for a matter related to the client’s case.

The record must include:

 All property, other than money, held in trust.

 A description of each item and the date it was received.
 The person who held the property before the lawyer.
 The value of each item.
 The client for whom the property is held.
 The date and recipient when the property is returned.

Examples of valuable property include:

 Stocks, bonds, and other securities.

  Jewelry, paintings, and other valuable items.
 Property that can be converted into cash.
 Mortgages or other legal instruments in the lawyer’s name held in trust.

Figure 4: Clients’ Trust Ledger

Leslie Lawyer — Clients’ Trust Ledger

Account: PIPER, Jane re small claim

Date: 2024

 Oct 12: Retainer for small claim, $3,000.00. Balance in trust: $3,000.00
 Oct 30: Transfer to General Invoice #0118, $2,825.00. Balance in trust: $175.00
 Nov 8: Retainer for small claim, $1,250.00. Balance in trust: $1,425.00
 Nov 15: Filing fee for notice of garnishment, $100.00. Balance in trust: $1,325.00

Account: SAID, Ali re summary charge

Date: 2024

 Nov 15: Bail advance & retainer for summary charge, $21,130.00. Balance in trust:
$21,130.00
 Nov 22: Bail payment, $20,000.00. Balance in trust: $1,130.00
 Nov 22: Transfer to General Invoice #0119, $1,130.00. Balance in trust: $0.00

Account: SILVER, David re small claim

Date: 2024

 Nov 18: Retainer for small claim, $200.00. Balance in trust: $200.00
 Nov 28: Filing claim, $175.00. Balance in trust: $25.00
 Nov 30: Transfer from S. Silver, $10.00. Balance in trust: $35.00

Account: SILVER, Susan re traffic

Date: 2024

 Nov 1: Retainer for traffic, $100.00. Balance in trust: $100.00

 Nov 5: Parking ticket payment, $90.00. Balance in trust: $10.00
 Nov 30: Transfer to D. Silver, $10.00. Balance in trust: $0.00

No trust ledger accounts were created for Angela Finelli or Stephen Bell. These clients are billed as
services are rendered, with no advance retainer.

Figure 5: Monthly Trust Comparison

Leslie Lawyer — Trust Bank Reconciliation as at November 30, 2024

Mixed Trust Account:

 Balance per Bank Statement: $21,533.00

 Less: Outstanding Cheques (see list below): $20,175.00
 Plus: Outstanding Deposits — 30Nov24: $0.00
 Plus: Bank Error — 11Nov24: $2.00 (Cheque #062 cleared as $344.00, should be $342.00,
corrected 18Dec24 by credit memo)
  Reconciled Mixed Trust Bank Balance at November 30, 2024: $1,360.00

Outstanding Cheques:

 Cheque #014, 22Nov24, $20,000.00

 Cheque #015, 28Nov24, $175.00
 Total Outstanding Cheques: $20,175.00

Client Trust Listing as at November 30, 2024 (from clients’ trust ledger balances):

 PIPER, Jane re small claim, Last Activity Date: 15Nov24, Amount: $1,325.00
 SAID, Ali re summary charge, Last Activity Date: 22Nov24, Amount: $0.00
 SILVER, David re small claim, Last Activity Date: 28Nov24, Amount: $35.00
 SILVER, Susan re traffic, Last Activity Date: 05Nov24, Amount: $0.00
 Total client funds in trust: $1,360.00
 Total trust liabilities to clients at November 30, 2024: $1,360.00

Trust Comparison as at November 30, 2024:

 Total Reconciled Trust Bank Balance: $1,360.00

 Total of unexpended balances per Clients’ Trust Ledger: $1,360.00

Figure 6: Duplicate Cash Receipt

DUPLICATE CASH RECEIPT

 Receipt #: 0001
 Date:
 Received from:
 The amount of:
 On behalf of:
 For file #:
 Signature of Payor (person paying cash):
 Authorized signature on behalf of [name of firm]:

Figure 7: Valuable Property Record

Description of Date Received Value of Date

Client Given To
Property Received From Property Given
BELL, BELL, BELL,
Pearl necklace 01Dec23 $530.00 02Jan24
Stephen Stephen Allison
SILVER, SILVER,
Silver jewellery 01Jan24 $475.00
Susan Susan
FINELLI, FINELLI,
Collector plates 07Feb24 $320.00
Angela Angela
Figure 8: Sample Electronic Trust Transfer Requisition (Form 9A)
[sample] FORM 9A - ELECTRONIC TRUST TRANSFER REQUISITION

 Requisition #: ET0081
 Amount to be transferred: $2,825.00
 Re: PIPER small claim
 Client: Jane Piper
 File No.: 10-47
 Reason for payment: Fees ($2,500.00), disbursements ($0.00), HST ($325.00) billed to client
 Trust account to be debited:
o Name of financial institution: Bank of Ontario
o Account number: 123456789
 Name of Recipient: Leslie Lawyer, General Account
 Account to be credited:
o Name of financial institution: Bank of Ontario
o Branch name and address: 20 Downtown St., City, ON Z9Y 2T2
o Account number: 987654321
 Person requisitioning electronic trust transfer: Leslie Lawyer
o Date: October 30, 2024
o Signature: Leslie Lawyer
 Person entering details of transfer: Sandy Secretary
o Signature: Sandy Secretary
 Person authorizing transfer at computer terminal: Bobby Bookkeeper
o Signature: Bobby Bookkeeper

Chapter 15: Indigenous Peoples of Canada: History and Current Legal Issues

The goal of this chapter is to help better understand how to work with and serve Indigenous peoples
and communities. These interactions should be seen as an opportunity to progress toward
reconciliation, not as a problem needing a solution.

The Guide for Lawyers Working with Indigenous Peoples (2018), created by the Indigenous Bar
Association, the Advocates’ Society, and the Law Society of Ontario, states, “There is no such thing
as a culturally neutral practice of law.” Similarly, Indigenous cultures are not the same but vary
widely in laws, languages, histories, and customs. Licensees should be aware of this and learn about
the unique experiences of the communities they work with.

There are common histories and the impacts of colonization, especially from the efforts of colonial
and Canadian governments to assimilate and eliminate entire groups of people. These actions have
caused multi-generational trauma. Licensees should be mindful that some clients may have
experienced trauma as a result. This chapter is part of the ongoing national reconciliation process.

1. Indigenous Culture, Governing Systems, and Law

This section mostly comes from the Guide and the 1996 Royal Commission on Aboriginal Peoples
(RCAP) Report, which remains an important source on Indigenous matters.

1.1 Definitions/Glossary of Terms

Indigenous peoples in Canada can be grouped into three main subgroups: First Nations, Métis, and
Inuit.
  First Nations people are the descendants of the original inhabitants of southern Canada. The
term "First Nations" replaced "Indian" in the 1980s, which was a colonial term.
 Métis people are descendants of relations between First Nations women and European men.
Over time, Métis people developed unique communities and cultures.
 Inuit are the descendants of the original inhabitants of the Arctic.

All three subgroups are constitutionally protected under section 35 of the Constitution Act, 1982, and
are considered "Indian" for federal jurisdiction under section 91(24) of the Constitution Act, 1867.

1.2 Indigenous Culture

Over 1.6 million people of Indigenous ancestry live in Canada, speaking more than 70 different
languages. There is no single Indigenous culture, but rather a rich diversity of histories, languages,
values, and traditions. For instance, the stories in the Big Houses of the Salish differ from those told
in the Longhouses of the Haudenosaunee, and the Potlatch ceremonies on the West Coast are different
from the Sundance ceremonies on the Prairies.

Land and water are central to many Indigenous cultures and spiritual practices. The Assembly of First
Nations notes that First Nations people have a deep spiritual connection to the earth. This relationship
encourages respect, humility, and reciprocity, where resources are used thoughtfully to avoid harming
future generations.

In some Indigenous societies, women are considered the protectors of water due to their sacred role in
bringing life. Knowledge about these roles and ceremonies is highly respected within Indigenous
communities and is often held by knowledge keepers or Elders. Elders are individuals who have
specialized knowledge in culture, language, history, and ceremonies, and are recognized by their
community.

1.3 Governing Systems of Indigenous Peoples

Traditionally, governance in Indigenous nations was closely linked to family, land, and spirituality.
However, the Indian Act of 1876 imposed a new municipal-style government that displaced
traditional governance. The Indian Act also introduced male chiefs, reducing the influence of women
and changing decision-making from consensus to majority voting.

Many First Nations still operate under the Indian Act but are working toward self-government outside
its constraints. First Nations governments typically include a chief and councilors, who make
decisions for the community. There are four ways a chief and councilors may be chosen:

1. Through the Indian Act and Indian Band Election Regulations.

2. Using the optional First Nations Elections Act.
3. According to a community’s constitution in a self-government agreement.
4. By a community’s custom leadership process.

Licensees should learn about the leadership selection process of the First Nation they are working
with.

1.4 Indigenous Law

Indigenous laws were the first laws on the land that became Canada and continue to be an important
part of Canada's legal system. These laws can be categorized as sacred, natural, deliberative,
positivistic, and customary. Indigenous laws are vibrant, offering answers to legal issues and helping
make sound decisions. They can also create binding obligations and protect individual and group
rights.

2. History of Indigenous-Crown Relations

To understand the challenges faced by Indigenous peoples today, we need to explore key events in the
history of Indigenous-Crown relations. The first four stages are based on the RCAP Report.

2.1 Stage 1: Separate Worlds and First Contact

Before the 1500s, Indigenous societies in the Americas and non-Indigenous societies in Europe
developed separately. The "doctrine of discovery" justified European countries claiming lands they
"discovered," even though Indigenous peoples had lived there for centuries. This idea, along with
"terra nullius" (land belonging to no one), was used to justify the displacement of Indigenous peoples.
These concepts were later rejected, as stated by the Supreme Court of Canada in 2004.

2.2 Stage 2: Nation to Nation

After first contact, Indigenous peoples formed alliances with European powers, which were vital for
European survival. The Royal Proclamation of 1763, issued by the British Crown, recognized
Indigenous nations, protected their land rights, and prohibited anyone other than the British Crown
from buying Indigenous lands. Treaties were made where both parties shared land and resources
peacefully.

2.3 Stage 3: Respect Gives Way to Domination

In the 19th and 20th centuries, the relationship between Indigenous peoples and the Crown changed
from mutual respect to domination. The Crown sought to remove Indigenous peoples from their lands
and assimilate them into European culture. This led to laws like the 1857 Act to encourage the
"civilization" of Indigenous peoples and the 1876 Indian Act. The government’s goal was to diminish
Indigenous political and cultural influence, and this period resulted in widespread displacement and
discrimination.

2.4 Stage 4: Renewal and Renegotiation

In 1969, the federal government proposed the White Paper, which sought to eliminate the Indian Act
and treat Indigenous peoples as equals under Canadian law. Indigenous peoples rejected the proposal,
leading to a rise in activism and calls for constitutional reform.

In 1982, the Constitution Act, 1982 was enacted, including the Canadian Charter of Rights and
Freedoms. Sections 25 and 35 recognize and affirm Indigenous peoples’ rights. Judicial decisions also
began to clarify the interpretation of Aboriginal rights.

In 1996, the RCAP Report referred to this period as one of renewal. However, many
recommendations from the report remain unaddressed, and a fifth stage, reconciliation, is added in
this chapter.

2.5 Stage 5: Reconciliation

1. On September 13, 2007, the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) was adopted by the United Nations General Assembly. This was a key milestone
in recognizing the rights of Indigenous peoples.
 2. In 2016, the Government of Canada promised to implement UNDRIP “without qualification,”
which was an important step toward reconciliation.
3. A second key element of reconciliation is the work of the Truth and Reconciliation
Commission of Canada (TRC). The TRC was tasked with documenting Canada’s history of
residential schools.
4. In June 2015, the TRC released the summary of its findings, including 94 “Calls to Action”
aimed at improving relationships between Canadians and Indigenous peoples. Some of these
Calls to Action target the legal community.
5. Impediments and Unique Challenges

3.1 Path to Self-Government

1. Indigenous self-government allows Indigenous peoples to control their own land, resources,
and leadership. This helps them preserve their cultures and identities for future generations.
2. Self-government is an inherent right of Indigenous peoples, not granted by external sources
like international law or the Constitution. Article 3 of UNDRIP affirms Indigenous peoples’
right to self-determination.
3. However, Canada’s Constitution and the Indian Act do not recognize Indigenous self-
government. In the 1980s, attempts were made to clarify the meaning of s. 35 of the
Constitution Act, 1982, but no agreement was reached.
4. In 1995, the federal government began recognizing the inherent right of self-government. The
Government of Canada created the “Inherent Right Policy” to negotiate agreements for self-
government.
5. Currently, 25 self-government agreements involve 43 Indigenous communities, removing
them from some provisions of the Indian Act. These agreements also ensure that the Charter
applies to all matters affected.

3.2 The Legacy of Residential Schools

1. Canada’s residential schools, which began in the 19th century, were designed to separate
Indigenous children from their families. These schools aimed to assimilate children into Euro-
Canadian culture, weakening family ties and cultural links.
2. The TRC has described these schools as part of a policy of cultural genocide. Many children
lived in fear, loneliness, and neglect, enduring poor conditions and harsh discipline.
3. The legacy of residential schools still affects Indigenous communities. It is reflected in
ongoing disparities in education, income, health, and social issues.
4. The trauma from residential schools has passed down through generations. Survivors’ trauma
and destructive behaviors have affected their families and communities.
5. In response to lawsuits from former students, the Indian Residential Schools Settlement
Agreement (IRSSA) took effect in 2007, including the creation of the TRC.
6. Steps Toward Reconciliation

4.1 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

1. UNDRIP is a human rights instrument that recognizes, but does not create, Indigenous rights.
It stresses the need for special measures to address the harm caused by colonialism and
discrimination.
2. UNDRIP asserts the right of Indigenous peoples to enjoy all human rights and freedoms, as
outlined in the United Nations Charter and international human rights law.
3. UNDRIP also emphasizes the importance of “free, prior, and informed consent” in decisions
affecting Indigenous peoples’ land, culture, and resources.
4. After UNDRIP’s adoption in 2007, Indigenous peoples advocated for its full implementation
in Canada. Call to Action #43 of the TRC urges all levels of government to adopt UNDRIP as
the framework for reconciliation.
 5. On June 21, 2021, Canada passed the United Nations Declaration on the Rights of Indigenous
Peoples Act, which requires the government to ensure Canadian laws align with UNDRIP.

4.2 The Truth and Reconciliation Commission

1. The TRC was established under the IRSSA to help foster reconciliation between former
students of residential schools, their families, and all Canadians.
2. The TRC’s Final Report was released in 2015. It called for a respectful relationship between
Indigenous and non-Indigenous peoples, based on awareness, acknowledgment, atonement,
and action to change behavior.
3. The TRC’s 94 Calls to Action cover topics like child welfare, education, language, culture,
health, and justice. Some also address equity in the legal system and church apologies.
4. Call to Action #27 calls for cultural competency training for lawyers, focusing on the history
and legacy of residential schools and other aspects of Indigenous rights.
5. Most of the TRC’s Calls to Action have not been fully addressed. Canada has yet to develop a
national plan for the 231 "calls for justice" from the National Inquiry into Missing and
Murdered Indigenous Women and Girls.

4.3 Taking into Account Indigenous Perspectives

1. Aboriginal and treaty rights are pre-existing and independent of Canadian law. Understanding
these rights requires considering Indigenous legal systems and perspectives.
2. The Supreme Court of Canada has emphasized that courts must be sensitive to Indigenous
perspectives while also considering Canadian law in aboriginal rights claims.
3. Indigenous peoples want their legal traditions respected and integrated into Canadian law. As
John Borrows stated, the legal systems must respond to each other and support Indigenous
values, customs, and traditions.

4.4 New Child Welfare Legislation

1. Call to Action #4 demands the creation of Aboriginal child welfare legislation. The result was
the An Act respecting First Nations, Inuit, and Métis children, youth, and families
(FNIMCYF), which came into effect on January 1, 2020.
2. The FNIMCYF affirms Indigenous jurisdiction over children and families in care. However,
the act is criticized for lacking funding, oversight, and clear implementation plans.
3. The FNIMCYF has also been criticized for not ensuring the protection of Jordan’s Principle,
which guarantees that First Nations children receive services when needed.
4. In 2023, a settlement agreement was reached regarding discrimination in federal child welfare
services, leading to over $23 billion in compensation for affected families.

4.5 New Indigenous Languages Act

1. The Indigenous Languages Act (ILA), passed in 2019, aims to support the revitalization and
strengthening of Indigenous languages. It responds to several Calls to Action from the TRC.
2. The ILA received initial funding, but some Indigenous groups argue that the funding is
insufficient. There is also criticism that the act does not grant official language status to
Indigenous languages.
3. Trauma-Informed and Anti-Racist Approach to Legal Practice
4. Lawyers working with Indigenous clients must be culturally competent to avoid re-
victimizing clients who have had negative experiences with legal systems.
5. A trauma-informed approach to law involves understanding trauma’s impact, creating safe
environments, fostering choice and collaboration, and focusing on clients’ strengths.
6. Lawyers should also adopt an anti-racist approach to counter systemic racism. Resources such
as the Guide and the Guidelines for Lawyers Working with Indigenous Peoples can assist
with this.