September 25, 2014

Starting October 1, 2014, the Ontario Rules of Professional Conduct (ROPC) are being updated with a number of new rules, the first big change since 2000.  While many of the changes will likely be of interest to practitioners, there are a number of new rules that are intended to more clearly set out the relationship between clients and lawyers and to protect the public interest. I have highlighted seven new rules that may be of particular interest:

1) New definition of “client”

When a client retains a lawyer, there are a number of rules that the lawyer is expected to follow. Previously, the creation of the “solicitor-and-client” relationship was not specifically defined by the rules.  Now, the rules specifically require that there must first be a consultation between a lawyer and client before there is a solicitor-and-client relationship.  So simply calling an assistant at a law firm, even if there is a very specific discussion about retaining the lawyer’s services, will not constitute a solicitor-and-client relationship.

2) New definition of “consent”

There are all kinds of agreements and relationships in the ROPC that require a party to give consent.  For example, a lawyer cannot represent a client if there is a conflict of interest, unless the client consents (see below). Now the rules spell out that consent has to be both fully informed and voluntary for there to be actual consent.

3) Quality of service to clients

The updated ROPC better sets out the obligations that lawyers have to their clients. A new rule states that lawyers must provide courteous, thorough and prompt service to clients.  Prompt service means that lawyers need to meet their deadlines, unless the lawyer can offer a reasonable explanation for the delay and there is no prejudice to the client as a result of the delay.  A competent lawyer is well aware of deadlines and maintaining constant communication with their client.  However, enshrining the rule in the ROPC serves to further highlight the importance of providing high quality service.

4) Conflict of interest

The rules governing conflicts of interest have changed. The rules clearly say that a lawyer cannot act for a client where there is a conflict of interest, but for a few exceptions.  Where there is a conflict, the lawyer is not allowed to act for a client unless there is either express or implied consent and the lawyer believes that he/she can continue to act for the client without having a “material adverse effect” on the representation.

5) Conflicts of interest: testamentary instruments and gift

As Jasmine Sweatman pointed out in an earlier blog this month, this change represents the most significant estates-specific change to the ROPC.  A lawyer who drafted a will must advise the estate trustees in writing that a clause requiring them to retain that lawyer is non-binding (i.e. the estate trustees are free to hire whomever they want).  Also, a lawyer is not allowed to “prepare or caused to be prepared” a will giving the lawyer or an associate a gift from the client, unless the client is a family member.

6) Fees and disbursements

A rule was added that deals with the repayment of money by a lawyer to a client where the fees charged were reduced on an assessment (under the Solicitors Act, a client has the right to assess a lawyer’s account).

7) Withdrawal from representation

A new rule requires that a lawyer who withdraws his or her services from a client must notify the client in writing. This should help ensure that there is no confusion as to whether the lawyer is still acting for the client.

Happy Litigating (ethically)!