Law Society of Yukon - Code of Conduct

CODE OF PROFESSIONAL CONDUCT

Rule 221 (s. 6(8), Legal Profession Act)

All members shall conduct their practice in accordance with:

(a) the Yukon Code of Professional Conduct as amended from time to time; and
(b) the Code of Conduct adopted by the Canadian Bar Association, as amended from time to time, where it is not inconsistent with the Yukon Code of Professional Conduct.

YUKON CODE OF PROFESSIONAL CONDUCT

GUIDELINES FOR LAWYERS ACTING FOR SURVIVORS OF ABORIGINAL RESIDENTIAL SCHOOLS

The Canadian Bar Association Code of Professional Conduct

PART ONE

LAWYER AND CLIENT

1.   The lawyer owes a duty to the client to be competent to perform the legal services, which are undertaken on behalf of the client.

2.   The lawyer should obtain full knowledge of the client's cause before advising thereon and should give a candid opinion of the merits and practicable results of pending or contemplated litigation. The lawyer should be aware of bold and confident assurances especially when his or her employment may depend on such assurances. The lawyer should be aware that seldom are the law and the facts totally on one side and that audi alterum partem is a safe rule to follow.

3.   The lawyer has a duty to hold in strict confidence all information acquired in the course of his or her professional relationship concerning a client's business and affairs. It is a lawyer's duty to insist upon the privilege that extends to all communications by a client to the lawyer for the purpose of obtaining professional advice or assistance. The privilege is that of the client and can only be waived by the client. Unless and until waived, it lasts forever and is not suspended by either the end of proceedings or the termination of the lawyer's retainer.

4.   No lawyers shall unreasonably fail to answer communications from his or her client. Inattention to communications from clients tends to create dissatisfaction and friction as well as suspicion and is thereby apt to bring the whole profession into disrepute.

5.   The lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the client or prospective client concerned, he or she should not act or continue to act in a matter when there is or there is likely to be a conflicting interest. A conflicting interest is one which would be likely to affect adversely the judgment of the lawyer on behalf of or his or her loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interests of a client or prospective client.

6.   A lawyer is required to guard the confidence of his or her client and to devote all of his or her skill and diligence to the client's interest. Consequently, once having acted for a client, the lawyer should not act against the client in the same matter.

7.   The lawyer owes a duty to the client to observe all relevant rules and laws regarding the preservation and safekeeping of the client's property when it is entrusted to the lawyer. The lawyer should take the same care of the property as a careful and prudent person would take care of his or her own property of like description.

8.   A lawyer should strive to avoid acting for both a vendor and a purchaser in a conveyancing transaction. The lawyer shall recommend independent representation.
Having given such recommendation, if a solicitor is prepared to act for both the vendor and the purchaser, the solicitor shall:

inform each that he or she has been asked to act for both that no information received in connection with the matter from one can be treated as confidential so far as the other is concerned, and that if a conflict develops which cannot be resolved, he or she cannot continue to act for either;
if either the vendor or the purchaser is a person with whom the lawyer has a continuing relationship or for whom he or she acts regularly, this fact should be revealed to the other;
obtain the consent in writing of the vendor and the purchaser;
raise all issues which may be of importance to the vendor and the purchaser and explain the legal effect of these issues to both parties.

Where the transaction is a simple conveyance coupled with a mortgage for an institution such as a bank, trust company, life insurance company, or a credit union, the lawyer may act for the purchaser or the vendor and the purchaser's mortgage until and unless an actual conflict arises. However, if a solicitor acts for the purchaser and the purchaser's mortgage, then the solicitor shall not act in any foreclosure proceeding which arises in relation to that transaction.

8A.   In all real estate transactions in the Yukon Territory the following undertaking will be implied unless expressly disclaimed in writing:

with respect to receiving the executed Transfer of Land from the vendor's solicitor, the purchaser's solicitor will be deemed to have undertaken to the vendor's solicitor:

not to make use of the Transfer of Land unless and until he/she has sufficient funds in his/her trust account to pay out in accordance with the vendor's Statement of Adjustment;
when the purchaser's solicitor has sufficient funds aforesaid in his/her trust account to forthwith file the Transfer of Land for registration in the Land Titles Office for the Yukon Land Registration District;
upon completion of registration to pay out in accordance with the vendor's Statement of Adjustments; and,
prior to registration of the Transfer to return to the vendor's solicitor, unregistered, the Transfer of Land and vendor's Statement of Adjustments forthwith upon request.

with respect to discharging the vendor's mortgage, the purchaser's solicitor will be deemed to have undertaken to the vendor's solicitor:

to deliver the cheque and covering letter to the mortgagee forthwith after closing;
to pay any interest or other charges payable to the mortgagee by reasons of any delay in delivery of the discharge funds; and,
to make every reasonable effort to obtain and register a proper form of discharge of the mortgage as soon as possible after closing.

The vendor's solicitor will be deemed to have undertaken to deliver to the purchaser's solicitor the undertaking of the vendor to provide any additional funds required to obtain the mortgage discharge by reason of any error, omission or other change in the mortgage statement, apart from those attributable to delay by the purchaser's solicitor.
where one lawyer is acting for both vendor and purchaser she or he will be deemed to have given the appropriate implied undertakings directly to the vendor and/or purchaser.

9.   No lawyer shall enter into an arrangement with any other person or corporation which involves that person or corporation directing clients to the lawyer in return for a portion of the fee paid by the client to the lawyer or in return for any other financial or other reward, direct or indirect.

10.   The lawyer should not stipulate for, charge or accept any fee which is not fully disclosed, fair and reasonable.

11.   No lawyer shall take fees, as opposed to disbursements, from funds held in trust for a client without the client's express authority unless the work has been performed and a proper bill in respect thereof has been rendered to the client.

12.   No lawyer shall enter into a contingency fee arrangement with a client unless the contract is in writing and specifically provides that the client may apply to the taxing office of the Supreme Court to have the ultimate reasonableness of the contract reviewed.

13.   A lawyer may accept payment of fees, disbursements or retainer by credit card but shall not accept a charge card slip unless the amount of the charge is inserted at the time the slip is signed by the client.

14.   In the event that the amount of fees or disbursements charged by a lawyer is reduced on a taxation, the lawyer shall immediately repay the monies to the client.

15.   No lawyer should carry on any business or occupation in such a way that it makes it difficult for a client to distinguish in which capacity the lawyer is acting in a particular instance or which could give rise to a conflict of interest or duty to the client.

16.   The lawyer who engages in another profession, business or occupation concurrently with the practice of law must not allow such outside interest to jeopardize his or her professional integrity, independence or competence.

17.   A lawyer who engages in business affairs outside the practice of law must strive to ensure that those persons with who he or she engages with in such business affairs are independently represented or advised. This does not preclude a lawyer from acting for the business enterprise with respect to matters involving third parties.

18.   No lawyer shall borrow money from a client save the exceptional circumstances, and in that case the onus of proving that the client's interests were fully protected by the nature of the case or by independent advice shall rest upon the lawyer. Persons connected by blood relationships, marriage or adoption, corporate clients whose shares are listed on a stock exchange, insurance corporations and other corporations whose business is that of lending money to members of the public are excepted.
No lawyer shall fail or refuse to disclose in writing any personal interest which he or she may have in the transaction in which a client's funds are or may be invested, whether or not the interest is direct or indirect or through a corporation or syndicate in which he or she has a substantial or controlling interest. In such circumstances, the client must be represented by an independent solicitor in the transaction.
Whether a person lending money to a solicitor on his or her own account or investing funds in a security in which the solicitor has an interest, is to be considered a client within the above principle, is to be determined having regard to all the circumstances. If the circumstances are such that the lender or investor might reasonably suppose that he or she was entitled to look to the solicitor for guidance and advice in respect of the loan or investment, then the solicitor shall consider himself or herself bound by the same fiduciary obligation that attaches to a solicitor in dealings with a client.

19.   Negligence in the handling of a client's transaction may be conduct unbecoming.

20.   The lawyer should endeavor by all fair and honorable means to obtain for the client the benefit of every remedy and defense that is available in law or equity, but the lawyer must bear in mind that the great trust of the lawyer is to be performed within the bounds of the law. The office of lawyer does not permit or demand the lawyer for any client violation of the law, fraud or chicanery.

21.   The lawyer owes a duty to the client not to withdraw his or her services except for good cause and upon giving appropriate notice.

22.   The lawyer has a continuing obligation to canvass with each client, in a well-informed manner, all reasonable available dispute resolution processes.