Quick Reference Tool for Key Amendments to the Rules of Professional Conduct

The following list highlights some of the key amendments made to the Rules. Click on a specific topic for more information regarding the change.

1. Definition of the Term “Client”  

2. Definition of the Term “Consent”  

3. Integrity  

4. Quality of Service to Clients  

5. Threatening Criminal or Regulatory Proceedings to Gain a Benefit for the Client  

6. Disclosure of Confidential Information when Dealing with Clients or Persons with Diminished Capacity  

7. Disclosure of Confidential Information  

8. Disclosure of Confidential Information by Sole Practitioners Practising in Association  

9. Conflicts of Interest  

10. Consent to Conflicts of Interest  

11. Conflicts of Interest – Doing Business with a Client  

12. Conflicts of Interest – Testamentary Instruments and Gifts  

13. Conflicts of Interest – Lawyer Acting as a Surety  

14. Fees and Disbursements  

15. Withdrawal from Representation  

16. Making Legal Services Available  

17. Duty as an Advocate  

18. Lawyer as a Witness  

19. Unrepresented Parties  

20. Inadvertent Communication  

21. Undertakings and Trust Conditions  


 


 1. Definition of the Term “Client”  

The definition of the term “client” has changed.

The new definition of the term “client” contained in rule 1.1-1 specifies that a solicitor-and-client relationship may arise only in circumstances where there is a consultation between a lawyer and a client:

“client” means a person who:  

  • consults a lawyer and on whose behalf the lawyer renders or agrees to render legal service; or   
  • having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf      

    and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work.  

Commentary [1] following the definition continues to stipulate that a solicitor-and-client relationship can arise without formality.

Commentary [2] clarifies that when an individual consults a lawyer in a representative capacity, the client is the corporation, partnership, organization or other legal entity that the individual is representing. Furthermore, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established (commentary [3])

The commentary to rule 3.3-1 (Confidential Information) provides that a lawyer should be cautious in accepting confidential information on an informal or preliminary basis since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter (rule 3.3-1, commentary [4]).

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 2. Definition of the Term “Consent”  

The definition of the term “consent” has been amended.

The definition of the term “consent” in rule 1.1-1 now stipulates that consent must be fully informed and voluntary after disclosure. In addition the revised definition provides that where consent is given in writing by more than one person, the consent may now be provided in the same document signed by all the persons consenting, as opposed to in separate documents. If the consent is provided orally, the definition continues to provide that each person consenting must receive a separate written confirmation recording the oral consent, but also adds that this must occur as soon as practicable.

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 3. Integrity  

New rules on integrity have been added. The new rules and commentaries incorporate some of the provisions in former rule 6.01 (Responsibility to the Profession Generally) and subrule 1.03(1) (Standards of the Legal Profession).

Rule 2.1-1 provides that

    A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.  

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 4. Quality of Service to Clients  

A rule specifying that a lawyer has a duty to provide courteous, thorough and prompt service to clients has been added.

This new rule on quality of service is contained in rule 3.2-1, and it stipulates that a lawyer has a duty to provide service that is competent, timely, conscientious, diligent, efficient and civil.

Commentary [1] and [2] of rule 3.2-1 provide that the rule should be read and applied together with the rules in Section 3.1 (Competence), but that an ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service.

Commentary [6] also addresses the issue of lawyer-client communication, stipulating that a lawyer should be prompt in responding to communications and reporting developments to clients. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects.

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5. Threatening Criminal or Regulatory Proceedings to Gain a Benefit for the Client  

Rules 3.2-5 and 3.2-5.1 expand the prohibition against a lawyer threatening or advising a client to threaten to bring a criminal or quasi-criminal prosecution to gain a civil advantage for the client to include certain complaints to regulatory authorities.

Rule 3.2-5 provides that a lawyer shall not, in an attempt to gain a benefit for a client, threaten or advise a client to threaten to initiate or proceed with a criminal or quasi-criminal charge or to make a complaint to a regulatory authority. Rule 3.2-5.1 clarifies that the prohibition relating to the making of a complaint to a regulatory body does not apply to an application made in good faith for a benefit to which the client may be legally entitled. For example, if the regulatory authority exercises a jurisdiction that is essentially civil, a lawyer may threaten to make a complaint pursuant to that authority to achieve a benefit for the client, as might occur in a complaint for the payment of unpaid wages under the Employment Standards Act, 2000.

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6. Disclosure of Confidential Information when Dealing with Clients or Persons with Diminished Capacity  

New commentaries have been added to rules 3.2-9 (Client with Diminished Capacity) and 3.3-1 (Confidential Information) to address the issue of disclosure of necessary confidential information by lawyers when taking protective action on behalf of a client or a person with diminished capacity or steps to protect their interests.

Commentary [5] of rule 3.2-9 provides that the lawyer’s authority to disclose necessary confidential information when taking protective action on behalf of a client or person who lacks in capacity may be implied in some circumstances. If the court or other counsel becomes involved, the lawyer should inform them of the nature of the lawyer’s relationship with the person lacking capacity.

Similarly commentary [10] of rule 3.3-1 provides that the client’s authority for the lawyer to disclose confidential information to the extent necessary to protect the client’s interest may be inferred in some situations where the lawyer is taking action on behalf of a person lacking in capacity to protect the client’s interests until a legal representative can be appointed. In determining whether a lawyer may disclose confidential information in these situations, the lawyer should consider all of the circumstances, including

  • the reasonableness of the lawyer’s belief that the person lacks capacity;
  • the potential harm that may come to the client if no action is taken; and
  • any instructions the client may have given the lawyer when capable of giving instructions about the authority to disclose information.

These considerations also apply to the disclosure of confidential information given to the lawyer by a person who lacks the capacity to become a client, but nevertheless requires protection.

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7. Disclosure of Confidential Information  

Amendments have been made to the rule on confidentiality dealing with the disclosure of confidential information. Two additional grounds authorizing the disclosure of confidential information have been added, and there is new commentary to the rule on permitted disclosure to prevent death or harm.

Disclosure of Confidential Information  

Rule 3.3-1 provides that a lawyer shall disclose confidential information when required to provide the information to the Law Society, and rule 3.3-6 provides that a lawyer may disclose confidential information to another lawyer to obtain legal advice about the lawyer’s proposed conduct.

Disclosure to Prevent Death or Harm  

Commentary [5] has been added to rule 3.3-3 dealing with the disclosure of confidential information by lawyers to prevent death or harm. The commentary stipulates in part that after making the disclosure permitted by the rule, the lawyer should prepare a written note as soon as possible including

  • the date and time of the communication in which the disclosure is made;
  • the grounds in support of the lawyer’s decision to communicate the information, including the harm intended to be prevented, the identity of the person who prompted communication of the information as well as the identity of the person or group of persons exposed to the harm; and
  • the content of the communication, the method of communication used and the identity of the person to whom the communication was made.

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8. Disclosure of Confidential Information by Sole Practitioners Practising in Association  

A paragraph has been added to the commentary to rule 3.3-1 alerting lawyers practising as sole practitioners in association with other licensees in cost-sharing, space-sharing or other arrangements of the risk of advertent and inadvertent disclosure of confidential information.

The new commentary provides that sole practitioners who practise in association with other licensees should be mindful of the risk of advertent or inadvertent disclosure of confidential information even if the lawyers institute systems and procedures that are designed to insulate their respective practices. Additionally the commentary provides that the issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another licensee in the association. Apart from conflict-of-interest issues that such a situation may raise, the risk of disclosure of confidential information may depend on the extent to which the licensees’ practices are integrated, physically and administratively, in the association.

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9. Conflicts of Interest  

The rule regarding avoidance of conflicts of interest has changed. There is a new definition of “conflict of interest” as well as new rules and commentary.

A “conflict of interest” is now defined in rule 1.1-1 as

the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.  

A “substantial risk” means that the risk is significant and plausible even if it is not certain or even probable that the material adverse effect will occur (rule 1.1-1, definition of “conflict of interest, commentary [1]).

Rule 3.4-1 stipulates that a lawyer shall not act or continue to act for a client where there is a conflict of interest except as provided in Section 3.4 of the Rules. In this regard, rule 3.4-2 provides that a lawyer must not represent a client in a matter where there is a conflict of interest unless

  • there is express or implied consent from all clients; and
  • it is reasonable for the lawyer to conclude that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

The commentary to rule 3.4-1 gives examples of conflict-of-interest situations that commonly arise as well as factors for the lawyer’s consideration when determining whether there is a conflict of interest (commentary [7] and [8]). Section 3.4 deals with conflicts of interest involving current, former and joint clients as well as conflicts arising out of the lawyer’s personal interests and duties owed to third parties. Rules 3.4-1 through 3.4-9 deal with conflicts involving current clients, and rules 3.4-10 and 3.4-11 deal with lawyers acting against former clients.

Commentary [3.1] of rule 3.4-5 distinguishes joint retainers from separate retainers in which a law firm is retained to assist two or more clients competing at the same time for the same opportunity such as, for example, by competing bids in a corporate acquisition or competing applications for a single licence. Since these retainers are not joint retainers, information received from one client can be treated as confidential and not disclosed to the other client. Such competing retainers require

  • the express consent of the clients involved; and
  • the representation of each client by different lawyers in the firm.

The following resources contain more detailed information on compliance with the conflict-of-interest rule:

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10. Consent to Conflicts of Interest  

The new rule 3.4-2 specifies that consent for the purposes of the conflicts-of-interest rule must be express or, in certain limited circumstances, may be implied. Express consent must be fully informed and voluntary. The commentary to rule 3.4-2 gives guidance on how to obtain express consent. In addition it also addresses the obtaining of client consent in advance to conflicts that may arise in the future.

Consent must be express or implied.

Express Consent  

Rule 3.4-2 and the definition of “consent” in rule 1.1-1 provide that express consent must be fully informed and voluntary after disclosure of the conflict, and it must be in writing or confirmed in writing. Commentary [1] to [3] of rule 3.4-2 specifies that disclosure is an essential requirement to obtaining client consent. Disclosure means full and fair disclosure of all information relevant to a person’s decision in sufficient time for the person to make a genuine and independent decision and the taking of reasonable steps to ensure understanding of the matters disclosed. In making disclosure, the lawyer should inform the client of the relevant circumstances and the reasonably foreseeable ways that the conflict of interest could adversely affect the client’s interests. This would include the lawyer’s relations to the parties and any interest in or connection with the matter. Furthermore to ensure that the client’s consent is informed, in some circumstances, such as when the client is vulnerable or not sophisticated, the lawyer should recommend that a client obtain independent legal advice.

Implied Consent  

The rule also provides that in limited circumstances, client consent may be implied rather than expressly given. Consent may be implied only if all of the following circumstances exist:

  • the client is a government, financial institution, publicly traded or similarly substantial entity, or an entity with in-house counsel;
  • the matters are unrelated;
  • the lawyer has no relevant confidential information from one client that might reasonably affect the representation of the other client; and
  • the client has commonly consented to lawyers acting for or against it in unrelated matters.

Consent in Advance  

Commentary [4] and [5] of rule 3.4-2 provide that in certain circumstances the lawyer may be able to obtain the client’s consent in advance to conflicts that may arise in the future. However, the effectiveness of such consent is generally determined by the extent to which the client reasonably understands the material risks that the consent entails. Therefore, the more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. A general, open-ended consent will ordinarily be ineffective because it is not reasonably likely that the client will have understood the material risks involved. If the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by other counsel in giving the consent and the consent is limited to future conflicts unrelated to the subject of the representation.

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11. Conflicts of Interest – Doing Business with a Client  

The rules dealing with doing business with a client have been revised. They are now contained in rules 3.4-28 to 3.4-41 of the conflicts-of-interest section of the Rules.

Rule 3.4-28 stipulates that a lawyer must not enter into a transaction with the client unless the transaction is fair and reasonable to the client, the client consents to the transaction and the client has independent legal representation. Under commentary [1], examples of such transactions include

  • lending or borrowing money;
  • buying or selling property;
  • accepting a gift including a testamentary gift;
  • giving or acquiring ownership, security or other financial interest in a company or other entity;
  • recommending an investment; or
  • entering into a common business venture.

In addition, rule 3.4-29 provides that if a client intends to enter into a transaction with his or her lawyer or a corporation or other entity in which the lawyer has an interest other than a corporation or other entity whose securities are publicly traded, before accepting the retainer, the lawyer must

  • disclose and explain the nature of the conflicting interest to the client or, in the case of a potential conflict, how and why it might later develop; and
  • recommend and require that the client receive independent legal advice.

If the client requests the lawyer to act, the lawyer must obtain the client’s consent.

Rule 3.4-30 provides that rule 3.4-29 does not apply when a client intends to pay for legal services by transferring to the lawyer a share, participation or other interest in property or in an enterprise, other than a non-material interest in a publicly traded enterprise. In such circumstances the lawyer must recommend, but need not require, that the client obtain independent legal advice before accepting the retainer.

Borrowing from Clients  

Rule 3.4-31 provides that a lawyer must not borrow money from a client unless the client is

  • a lending institution, financial institution, insurance company, trust company or any similar corporation whose business includes lending money to members of the public; or
  • a related person as defined by the Income Tax Act (Canada) and the lawyer is able to discharge the onus of proving that the client’s interests were fully protected by the nature of the matter and by independent legal advice or independent legal representation.

Commentary [1] provides that whether a person is considered a client within this rule when lending money to a lawyer on the person’s own account or investing money in a security in which the lawyer has an interest will depend on all of the circumstances. If the circumstances are such that the lender or the investor might reasonably feel entitled to look to the lawyer for guidance and advice about the loan or investment, the lawyer is bound by the same fiduciary duties that attach to a lawyer in dealings with a client.

Lending to Clients  

Rule 3.4-34 has been added with respect to loans made by lawyers to clients. A lawyer must not lend money to a client unless, before agreeing to make the loan, the lawyer

  • discloses and explains to the client the nature of the conflicting interest;
  • requires that the client receive independent legal representation; and
  • obtains the client’s consent.  

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12. Conflicts of Interest – Testamentary Instruments and Gifts  

Rules 3.4-37 and 3.4-38 have been added to address conflicts of interest that may arise when a lawyer prepares, on behalf of a client, a testamentary instrument or other instrument in which the lawyer has a personal interest.

Rule 3.4-37 provides that when a lawyer drafts a will containing a clause directing that the lawyer be retained to provide services in the administration of the client’s estate, the lawyer should, before accepting the retainer regarding the administration of the estate, advise the trustees in writing that the clause is a non-binding direction and the trustees may retain other counsel.

Rule 3.4-38 provides that a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or the lawyer’s partner or associate a gift or benefit from the client, including a testamentary gift, unless the client is a family member of the lawyer or the lawyer’s partner or associate. The term “associate” is a defined term in the Rules and includes a lawyer who practises law in a law firm through an employment or other contractual relationship as well as a non-licensee employee of a multi-discipline practice providing services that support or supplement the practice of law (rule 1.1-1, definition of “associate”).

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13. Conflicts of Interest – Lawyer Acting as a Surety  

Rules 3.4-40 and 3.4-41 have been added to address the issue of a lawyer acting as a surety for a client.

Rule 3.4-40 provides that if a lawyer is acting for an accused, the lawyer must not

  • act as surety for the accused;
  • deposit with the court the lawyer’s own money or that of any firm in which the lawyer is a partner to secure the accused’s release;
  • deposit with any court any other valuable security to secure the accused’s release; or
  • act in a supervisory capacity to the accused.

Rule 3.4-41 provides that the above does not apply in a situation where the accused is in a family relationship with the lawyer and the accused is represented by the lawyer’s partner or associate.

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14. Fees and Disbursements  

A rule has been added dealing with the repayment of monies by a lawyer to a client where the amount of fees and disbursements charged by the lawyer have been reduced in an assessment. The commentary to rule 3.6-10 (Payment and Appropriation of Funds) addresses the lawyer’s obligation to reimburse monies to clients upon the termination of the retainer, and the commentary to rule 3.6-7 (Division of Fees and Referral Fees) outlines some limited circumstances in which it is appropriate for a lawyer to share fees with a non-lawyer. In addition, a new commentary has been added to rule 3.6-1 specifying that a lawyer should provide written information on fees, disbursements and interest to clients.

Assessment of Fees and Disbursements  

Rule 3.6-11 provides that if the amount of fees or disbursements charged by a lawyer is reduced on assessment, the lawyer must repay the monies to the client as soon as is practicable.  

Reimbursement of Monies on the Termination of the Retainer  

Commentary [2] of rule 3.6-10 provides that a lawyer’s refusal to reimburse any portion of advance fees for work that has not been carried out when the retainer with the client has terminated is a breach of the lawyer’s obligation to act with integrity.

Circumstances when Sharing Fees with Non-Lawyers Appropriate  

Commentary [1] of rule 3.6-7 states that despite the rules prohibiting lawyers from entering into arrangements to compensate or reward non-lawyers for the referral of clients, lawyers are permitted to

  • make an arrangement to purchase or sell a law practice where the consideration payable includes a percentage of revenues generated from the practice sold;
  • enter into a lease under which the landlord directly or indirectly shares in the fees or revenues generated by the law practice; and
  • pay an employee for services, other than for referring clients, based on the revenue of the lawyer’s firm or practice.

Provision of Written Information to Client on Fees and Disbursements  

Commentary [3] of rule 3.6-1 provides that a lawyer should provide to the client in writing, before or within a reasonable time after commencing representation, as much information regarding fees, disbursements and interest as is reasonable and practical in the circumstances, including the basis on which fees will be determined. In addition, commentary [4] states that a lawyer should confirm with the client in writing the substance of all fee discussions that occur as a matter progresses and that a lawyer may revise an initial estimate of fees and disbursements.

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15. Withdrawal from Representation  

Some changes have been made to the rules on withdrawal from representation. For example, a new provision has been added requiring the lawyer to notify the client in writing upon the lawyer’s discharge or withdrawal from representation, and a new commentary has been added discussing the procedures to be followed with respect to the termination of retainers when a lawyer leaves a law firm or when the firm is dissolved.

Termination of the Retainer When a Law Firm Dissolves or a Lawyer Leaves a Firm  

Commentary [4] of rule 3.7-1 discusses the lawyer’s obligations to clients when a law firm is dissolved or a lawyer leaves a firm. The commentary provides that in such circumstances, most clients prefer to retain the services of the lawyer whom the client regarded as the lawyer in charge of their business before the change. It states that the client’s interests are paramount and the final decision rests with the client and must be made by the client in the absence of undue influence or harassment by either the lawyer or the firm. This may require either or both of the departing lawyer and the law firm to notify clients in writing that the lawyer is leaving and advise the client of the options available: to have the departing lawyer continue to act, to have the law firm continue to act or to retain a new lawyer.

Duty to Notify the Client upon Withdrawal of Services  

Rule 3.7-9 adds an additional duty on a lawyer upon being discharged or withdrawing from representation. The lawyer must notify the client in writing of

  • the fact that the lawyer has withdrawn;
  • the reason, if any, for the withdrawal; and
  • in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new legal practitioner promptly.

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16. Making Legal Services Available  

The rule on making legal services available has been augmented by new commentary on pro bono services and advising the client about the right to apply for legal aid.

Commentary [2] of rule 4.1-1 provides that, as a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide pro bono services and to reduce or waive a fee when there is hardship or poverty or the client or prospective client would be deprived of adequate legal advice or representation.

Commentary [3] provides that a lawyer who knows or has reasonable grounds to believe that a client is entitled to legal aid should advise the client of the right to apply for legal aid, unless the circumstances indicate that the client has waived or does not need such assistance.

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17. Duty as an Advocate  

Rule 5.1-2 contains some additional obligations for lawyers when acting as advocates.

Three new duties have been added to the list contained in former subrule 4.01(2). When acting as an advocate, a lawyer cannot

  • make suggestions to a witness recklessly or knowing them to be false;
  • knowingly misrepresent the client’s position in the litigation or the issues to be determined in the litigation; and
  • appear before a court or tribunal while under the influence of alcohol or a drug.

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18. Lawyer as a Witness  

Some additions have been made to the rules regarding the lawyer as a witness to address situations where lawyers testify or submit their own affidavit evidence in matters that are purely formal and uncontroverted.

Rule 5.2-1 clarifies that the general prohibition that a lawyer not testify or submit his or her own affidavit evidence before the tribunal does not apply if

  • the lawyer is permitted to do so by law, the tribunal, the rules of the court or the rules of procedure of the tribunal; or
  • the matter is purely formal or uncontroverted.

Similarly rule 5.2-2 clarifies that the prohibition that a lawyer who was a witness in proceedings not appear as advocate in any appeal from the decision in those proceedings does not apply where the matter about which he or she testified is purely formal or uncontroverted.

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19. Unrepresented Parties  

Some changes have been made to former subrule 2.04(14) dealing with potential conflicts of interest where a lawyer has dealings with an unrepresented person on behalf of a client.

Former subrule 2.04(14), has been replaced. The new rule is now contained in Section 7.2 (Responsibility to Lawyers and Others). The lawyer is no longer required in such circumstances to advise the unrepresented person to obtain independent legal representation. The rule continues to provide that the lawyer must take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer and also take care to see that the unrepresented person understands that the lawyer is acting exclusively in the interests of the client and accordingly his or her comments may be partisan.

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20. Inadvertent Communication  

A new rule has been added dealing with the lawyer’s duties when the lawyer receives inadvertent communications.

 Rule 7.2-10 provides that a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent must promptly notify the sender. For the purposes of this rule, the term “document” includes email or other electronic modes of transmission subject to being read or put into readable form.

Commentary [1] of rule 7.2-10 clarifies that some issues relating to inadvertent disclosure are questions of law and beyond the scope of the Rules . Examples of these include the issues of whether a lawyer is required to take additional steps such as returning the original document or whether the document has lost its privileged status.

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21. Undertakings and Trust Conditions  

The rule on undertakings formerly contained in subrule 6.04(10) has been expanded to include trust conditions.

Rule 7.2-11 provides that in addition to their obligations regarding the giving and fulfilling of undertakings, lawyers must also honour every trust condition once accepted.

Commentary [2] of rule 7.2-11 provides that trust conditions should

  • be clear, unambiguous and explicit;
  • state the time within which the condition must be met;
  • expressed in writing;
  • communicated to the other party at the time that the property is delivered; and
  • accepted in writing.

If a 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 (commentary [4]).  

In addition, clients or others are not entitled to require a variation of trust conditions without the consent of the legal practitioner who has imposed the conditions and the lawyer who has accepted them (commentary [5)].

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