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New Code of Ethics in British Columbia Introduces New Concepts

On January 1, 2013, the Law Society of British Columbia brought into force a new code of ethics to govern the actions of lawyers in the province. The new code, officially known as the Code of Professional Conduct for British Columbia (“BC Code”) replaces the existing Professional Conduct Handbook that was in effect in British Columbia from 1993 until 2013. The BC Code is modeled after the Federation of Law Societies Model Code of Professional Conduct (Model Code), which was produced in an attempt to harmonize and provide uniformity to the various regulatory frameworks that are in place across Canada. The BC Code is not identical to the Model Code in every way however, and does include some elements unique to British Columbia. In addition, the BC Code does contain a number of sections from the Model Code that were not in the Professional Conduct Handbook and as such introduces a variety of new concepts to the ethical and professional responsibility landscape in the province that lawyers should be aware of.

Before looking at some of the new concepts included in the BC Code, it is useful to briefly review the history of ethical and professional responsibility guidance in Canada. Lawyers in Canada have had the benefit of written direction in regards to ethics and professional responsibility since approximately 1920. At this time the Canadian Bar Association published their Canons of Ethics, which provided commentary on the duties that lawyers owed to various parties in the legal process. The Canons of Ethics were subsequently incorporated into the ethical and professional responsibility frameworks of many provinces in Canada and still exist as the first section of the BC Code. The Canadian Bar Association has also expanded on the Canons of Ethics and released the Code of Professional Conduct (CBA Code) in 1974. The use of the CBA Code varies among provinces and has historically ranged from wholesale adoption of the CBA Code as the ethical and professional responsibility rules of the jurisdiction, to use of the CBA Code as an interpretive document. In British Columbia, the CBA Code has been recognized by the benchers of the Law Society of BC as a document of importance, however the BC Code and not the CBA Code is the binding set of rules governing ethics and professional responsibility for lawyers in the province.

The new BC Code contains many similar provisions found in the Professional Conduct Handbook and also introduces a number of new concepts into the professional responsibilities of lawyers in British Columbia. The following is a brief outline of a few of the more notable additions in my opinion:

  • Section 2.2-2 of the BC Code introduces a duty on lawyers to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions. While it is arguable that this duty has always existed in some form through the Canons of Ethics, it is worthy of note that it is included in the BC Code in such straightforward terms. It will be interesting to see to what extent this rule may be used in the future and to exactly what organizations it refers to, as the commentary specifically references legal aid, community legal services and pro bono work.
  • Sections 3.4-27 and 3.4-27.1 pertain to the provision of independent legal advice to clients. The sections provide detail regarding the need for managing conflicts in the provision of independent legal advice and most interestingly set out a few specific duties including that a lawyer must:
    •  “advise the client that the client has the right to independent legal representation;
    • explain the legal aspects of the matter to the clients, who appears to understand the advice given; and
    • inform the client of the availability of qualified advisors in other fields who would be in a position to advise the client on the matter from a business point of view.”

One can only assume that a section addressing independent legal advice was included in the BC Code as this is an area of service that is rife with the opportunity for potential claims. This is confirmed as well by s.3.4-32 of the BC Code, which addresses independent legal advice as well and requires a written certificate in transactions involving the advancement of client funds to another lawyer. What is most interesting about the section above however, is the obligation to inform the client of the availability of advisors from a “business point of view.”

  • Sections 6.2-1 through Section 6.2-3 introduce obligations on lawyers practicing in British Columbia in regards to the recruitment and engagement of students. These include a duty to observe any procedures set down by the Law Society in regards to recruitment and also the duty of a lawyer of a principal to provide the student with meaningful training and exposure to the practical aspects of law as well as the traditions and ethics of the profession.

These are just a few of the over 40 sections of the BC Code that do not have a similar corresponding rule in the Professional Conduct Handbook. While it could be argued that many of the new rules are merely codifications of general principles that were in existence prior to the introduction of the new BC Code, the new sections are worthy of note and study nonetheless. Through observation of the changes, one can get a sense of the shifting priorities and areas of concern for the regulators of the legal profession in Canada. The next step is to eagerly wait to see how the new BC Code is implemented and interpreted in future discipline decisions.

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Comments

  1. “inform the client of the availability of qualified advisors in other fields who would be in a position to advise the client on the matter from a business point of view.”

    Would another (firm of) lawyer(s) better able to provide the client the service in issue on a more favourable for the client arrangement, fall within the meaning of “qualified advisors”.

    I.e., – “Mr. Smith: I am obliged to tell you that DC&H Lawyers, down the street, will do this work for you at 1/2 the price and have it done by experts.”

    (I will have to read the commentary, in due course, if there is any.)

    DC

  2. m. diane kindree

    Once again, this new version of rules and regulation fails to address the constitutional/charter duty owed by the profession to “protect and defend Her Majesty’s Letters Patent”. This is not a option but it is a legal duty where offending legislation (Q.C. Act (B.C.) fails to provide a remedy “revocation clause for cause” to prevent unfit lawyers from receiving and retaining their Q.C. title. The Law Society; in their custodial duties as regulators (advisory committee to AG on Q.C. appointments), must submit the names of lawyers nominated and/or appointed, to the Attorney General, who have been found guilty of professional misconduct and/or who are currently under investigation for allegations of professional misconduct. In the case of the nomination, it must not go forward and the lawyer should be immediately advised of the Law Society’s decision. In the case, of a mistaken appointment the lawyer should be notified by the Law Society to surrender the title to the Attorney General immediately. The lawyer’s failure to comply would result in disciplinary action and sanctions. The Queen, the public and the court has a right to know that any lawyer, who has been bestowed with a Q.C. title, has a “clean” professional record as a basic minimum title requirement. Self-governance was granted in the public interest and under the law, protection and defense of the Crown must be absolute.

    For consideration before the section 1: “State”:

    1:01(1) To the “Queen”, Her Majesty, Elizabeth II the Queen in Right of Canada

    a) A lawyer will not accept a nomination, for appointment to “Her Majesty’s Counsel” (Q.C.), having been found guilty of professional conduct (“unfit”) and/or while under investigation (“disqualified”) for allegations of professional misconduct. A lawyer who has been found guilty of professional misconduct is banned for life from reapplying however, a lawyer cleared of all charges, who maintains a clean record, may reapply.
    b) The Law Society of B.C. will give written notification, to the Attorney General and the Advisory Committee, the name(s) and professional record(s) of all lawyers deemed unfit and/or are disqualified from receiving this honor.
    c) Upon notification by the Law Society of B.C., a lawyer will voluntarily surrender their Q.C. title for “cause” and cease to use this title in their practice.
    d) The Law Society of B.C. will immediately notify the A.G. and the Advisory Committee of their actions to protect and defend Her Majesty’s Letters Patent, the public interest, and the integrity of the profession from misrepresentation.
    e) The Law Society of B.C. will not represent any lawyer in contesting his/her Q.C. titled as this would represent a conflict of interest.

    Commentary: “The Queen is the Canadian Crown”.