RESPONSIBILITY TO LAWYERS
AND OTHERS
RULE
The lawyer’s conduct toward all persons with whom the lawyer comes into contact in practice should be
characterized by courtesy and good faith.1 COMMENTARIES
Guiding Principles
1. Public interest demands that matters entrusted to the lawyer be dealt with effectively and expeditiously. Fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the Rule will impair the ability of lawyers to perform their function properly.2
2. Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. The presence of personal animosity between lawyers involved in a matter may cause their
judgment to be clouded by emotional factors and hinder the proper resolution of the matter. Personal remarks or references
between them should be avoided. Haranguing or offensive tactics interfere with the orderly administration of justice and have no place in our legal system.3
3. The lawyer should accede to reasonable requests for trial dates, adjournments, waivers of procedural formalities and similar matters that do not prejudice the rights of the client. The lawyer who knows that another lawyer has been consulted in a matter should not proceed by default in the matter without enquiry and warning.4
Avoidance of Sharp Practices
4. The lawyer should avoid sharp practice and not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving any sacrifice of the client’s rights. The lawyer should not, unless required by the transaction, impose on other lawyers impossible, impractical or manifestly unfair conditions of trust, including those with respect to time restraints and the payment of penalty interest.5
5. The lawyer should not use a tape-recorder or other device to record a conversation, whether with a client, another lawyer or anyone else, even if lawful, without first informing the other person of the intention to do so.6
6. The lawyer should answer with reasonable promptness all professional letters and communications from other lawyers that require an answer and should be punctual in fulfilling all commitments.7
Undertakings
7. The lawyer should give no undertaking that cannot be fulfilled, should fulfill every undertaking given, and should scrupulously honour any trust condition once accepted.8
Undertakings and trust conditions should be written or confirmed in writing and should be absolutely unambiguous in their terms. If the lawyer giving an undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally. If the lawyer is unable or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition should be immediately returned to the person imposing the trust condition unless its terms can be forthwith amended in writing on a mutually agreeable basis.9
8. The lawyer should not communicate upon or attempt to negotiate or compromise a matter directly with any party who is represented by a lawyer except through or with the consent of that lawyer.10
Acting Against Another Lawyer
9. The lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges of other lawyers, but should be prepared, when requested, to advise and represent a client in a complaint involving another lawyer.11
10. The same courtesy and good faith should characterize the lawyer’s conduct toward lay persons lawfully representing others or themselves.12
11. The lawyer who is retained by another lawyer as counsel or adviser in a particular matter should act only as counsel or adviser and respect the relationship between the other lawyer and the client.13
1 ABA-MC EC 7-36 to 7-38, DR 7-101(A)(1); ABA-MR 3.4; Alta. 3-R.1, 4-S.O.P.; B.C. 1(4), 11; N.B. 15-R; N.S. R-13; Ont. 6.03(1); Que. 4.03.03.
2 Ont. 6.03(1) Commentary; N.S. R-13 Guiding Principle. In Ontario, The Advocates’ Society has published Principles of Civility for Advocates as an educational tool for the encouragement and maintenance of civility in our justice system; see Appendix below at 132.
3 ABA-MC EC 7-37; N.S. C-13.1; Ont. 6.03(1) Commentary; M.M. Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Jane, 1957) at pp.131- 32; N.B. D-4: “...it is the duty of counsel to ‘try the merits of the cause and not to try each other’.”
4 ABA-MC EC 7-38, 7-39; Alta. 4-R.4; N.B. 15-C.2(i), (iii); N.S. C-13.3; Ont. 6.03(2).
5 Alta. 4-R.3, C.3; N.B. 15-C.4; N.S. C-13.2; Ont. 6.03(3).
6 Alta. 1-R.8; B.C. 11(14); N.B. 15-C.2(iv); N.S. C-13.4; Ont. 6.03(4). “[T]o build up a client’s case on the slips of an opponent is not the duty of a professional man.... Solicitors do not do their duty to their clients by insisting upon the strict letter of their rights. That is the sort of thing which, if permitted, brings the administration of justice into odium,” per Middleton J. in Re Arthur and Town of Meaford (1915), 34 O.L.R. 231 at 233-34 (Ont. H.C.).
7 Alta. 1-R.6, C.6; B.C. 11(6); N.B. 15-C.2(v); N.S. C-13.5; Ont. 6.03(6). 8 Alta. 4-R.10.
9 Alta. 4-R.11; B.C. 11(7); N.B. 15-C.3; Ont. 6.03(8); N.S. C-13.6 to C-13.9. 10 ABA-MC EC 7-18; Alta. 4-R.6; B.C. 4(1.1); N.B. 15-C.2(ii); N.S. C-13.10; Ont. 6.03(7).
11 ABA-MC EC 2-28; B.C. 11(13); N.B. 15-C.5; N.S. C-13.12; Ont. 6.03(1) Commentary.
12 N.B. 15-C.2(vii); N.S. C-13.11. 13 N.B. 15-C.2(vi); N.S. C-13.11.