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As lawyers, we are advocates, advisors, and sometimes, the bearer of uncomfortable news - especially when ethics come into question. One of the more challenging aspects of being an advocate is engaging in candid ethical discussions that can make or break a case and, sometimes, a career. Judges talk to each other about us: they talk about our skills as advocates and, more importantly, they talk about our trustworthiness. These conversations and our reputations are not things any of us should take lightly. We need not only to educate ourselves on the ethical issues we may face, but also on how to hold conversations with our clients about ethical issues.
Upon being called to the bar, we are mostly left to ourselves with respect to the identification and resolution of various ethical dilemmas that will arise in our daily professional lives. It can be difficult to flag a potential ethical issue, let alone to know what to do once it has been identified.
In this series, we will review various ethical issues faced by lawyers and the best ways to address those issues with clients with input from some of the best lawyers involved with The Advocates’ Society. Specifically, we will provide guidance on what to do if: (i) you’ve determined you do not have the requisite skill set necessary to continue with a file; (ii) you suspect your client may not have capacity to instruct counsel; (iii) there has been a breach of confidentiality (accidentally or otherwise); or (iv) you are proceeding against self-represented parties or lawyers who have been suspended. In this issue, we will address how to head off potential ethical quandaries in the gathering of evidence in family law cases.
First, we need to understand the source of our ethical responsibilities. When we were called to the bar we all swore an oath. We promised to conduct all cases faithfully and to the best of our abilities, to faithfully serve and diligently represent the best interests of our clients, to conduct ourselves honestly and with integrity and civility, to not pervert the law to favour or prejudice anyone, and last, but certainly not least, to strictly observe and uphold the ethical standards that govern our profession.
Here in Ontario, the Rules of Professional Conduct lay out the ethical standards relating to the practice of law. Rule 2.1-1 states 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 public honourably and with integrity.” Rule 3.1-2 additionally provides that “a lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” The commentary on Rule 3.1-2 directs that competence is founded upon both ethical and legal principles.
One of the most difficult conversations we regularly face as family law lawyers is having discussions with clients about ethical evidentiary issues, including electronic privacy, especially in cases where the other party is self-represented and does not understand the various evidentiary rules. Courts have found that individuals have a reasonable expectation of privacy regarding their personal electronic devices. In highly charged family law cases, counsel must advise their clients about what evidence is fair game and what’s off limits, in cases where a client has access to their partner’s device and knows or can guess the password. Attempting to put such evidence before the court because the client demands it runs the dual risk that not only will the evidence not be admitted but that you have seriously harmed your reputation with the court by complying with the client’s demands in the face of what you know should, and should not, be properly put before the court.
As trusted counsel, the onus is on us to educate and guide our clients through the evidence gathering steps, and to impress upon them the importance of the source of the evidence. When clients provide us with documents, it’s important to make diligent inquiries about how they came into possession of the documents, and segregate any records that may have been obtained improperly. When we approach ethical issues from a trusted advisor perspective, instead of merely a service perspective where the customer is king, the inherent tension lessens and allows us to deepen the client relationship.
- Jennifer M. Bolduc
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