February 2015 e-Bulletin Resources for Lawyers

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Acting Against a Former Client

Situations often arise where a lawyer is asked to act against a former client.  In such cases, the lawyer must assess whether he or she is permitted to do so under the Rules of Professional Conduct (the "Rules").

Lawyers must not act against a former client in the same matter; any related matter; or, except as provided in rule 3.4-11, any other matter if the lawyer has relevant confidential information arising from the representation of the former client that may prejudice that client (r. 3.4-10 of the Rules). A lawyer may, however, act against a former client in such cases where the former client consents. Consent is defined under rule 1.1-1 as "fully informed and voluntary consent after disclosure" and must be either in writing or oral if a separate written communication is provided to the person consenting recording their consent as soon as practicable. The purpose of the prohibition on acting against a former client in certain circumstances is to guard against the misuse of confidential information from a previous retainer and to ensure that a lawyer does not attack the legal work done during a previous retainer or undermine the client's position on a matter that was central to a previous retainer.

It is important to note that it is not improper for a lawyer to act against a former client in a fresh and independent matter wholly unrelated to any work the lawyer has previously done for that client if the previously obtained confidential information is irrelevant to that matter (commentary to rule 3.4-10 of the Rules).

It may be possible for another lawyer at the same firm to act against the former client in some cases. Specifically, rule 3.4-11 provides that when a  lawyer has acted for a former client and obtained confidential information relevant to a new matter, another lawyer in the lawyer's firm may act in the new matter provided that

  • either the former client consents to the other lawyer acting, or
  • the law firm establishes that it has taken adequate measures on a timely basis to ensure that there will be no risk of disclosure of the former client's confidential information to the other lawyer having carriage of the new matter.

In the rare cases in which, having regard to all the circumstances, it is appropriate for another lawyer in the lawyer's firm to act against the former client without consent, lawyers should be guided by the commentary to rule 3.4-26. Although it is not possible to offer a set of "adequate measures" that will be appropriate in every circumstance, this commentary sets out guidelines to ensure that there is no disclosure of confidential information within the firm.

Law Society webcasting Convocation  The Law Society will provide live online viewing of the February 26 and April 23 Convocations as part of its commitment to continued transparency and accessibility. January's Convocation was also available by live webcast and the archived webcast is available for viewing. This series of webcasts will help to determine the level of the professions' interest in Convocation and the ongoing value of providing an up-close look at the way Convocation works and its consideration of policy issues. Check the relevant Convocation page on the Law Society's website a few days before Convocation for the link to that month's webcast.

Bencher Election 2015 - Have your say in shaping our future  Nominations for the Law Society's 2015 Bencher Election have closed and a list of candidates is now available. Voting will open in the second week of April and close April 30. A Voting Guide with information about the candidates will be posted on the Law Society's website prior to the opening of voting.

Do you provide legal services to the public? Potential clients can now search for you by main areas of law using the online Lawyer and Paralegal Directory. The Directory tab on the LSUC Portal lets you indicate one or more areas of law that members of the public can consult you about. This information will be populated in the Lawyer and Paralegal Directory, so members of the public can search for someone who can help them with a particular area of law. Members of the public can also find lawyers using the online Law Society Referral Service. Make sure you have entered your areas of law in the LSUC Portal and consider joining LSRS.

Annual Reports available in LSUC Portal   Lawyers and paralegals may access the 2014 Annual Report through the LSUC Portal. The annual report is due March 31, 2015. Licensees who fail to file their annual report by May 30, 2015, will be charged a $100 late fee and be subject to administrative suspension.

The amended Rules of Professional Conduct  came into effect on October 1, 2014. The following resources will assist lawyers with understanding and complying with the amended rules.

Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees  As part of its ongoing efforts to promote equity, diversity and inclusiveness in Ontario's legal profession, The Law Society of Upper Canada's Challenges Faced by Racialized Licensees Working Group has prepared a consultation paper that outlines the challenges faced by racialized licensees at all career stages and includes a series of questions for the professions to consider and comment upon. Additional ideas are also welcome. Written submissions should be sent to the Law Society by March 1, 2015. Learning and Consultation programs will take place across the province and will include discussions about the lawyer and paralegal rules on discrimination and harassment and the importance of these rules to overall practice management. These programs will contain 1 Professionalism hour.

Important Dates

February 26 - Convocation

March 2 - Final date to pay Annual Fees. Failure to pay fees will result in a $100 late fee and referral for suspension on or about this date. (Not applicable to members enrolled in the Pre-Authorized Payment Plan.)

March 31 - 2014 Lawyer Annual Report due; 2014 Class L3 Licence Annual Report due.

For more resources, visit the Manage Your Practice section under For Lawyers or phone 416-947-3315 or 1-800-668-7380 ext 3315. 

 

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