Legal Research Guide. to Ethics

Transcription

1 Legal Research Guide to Ethics 2006 Compiled by Eric B. Appleby Published and Printed By: Maritime Law Book Ltd. P.O. Box 302, Fredericton, NB Canada E3B 4Y9 or Call Free from anywhere in Canada or U.S.A. (except Alaska and Hawaii) Fax No.: Internet Web Site:

2 ISBN National Reporter Forums Bulletin Board ( Posts and comments are welcome on new, unique or interesting legal issues. Law students, article clerks, lawyers, librarians, professors, etc., can use the discussion board to exchange ideas about legal issues and case law. Use of the board is free. Go to and click on MLB Forums. Or find your answer to many legal problems by accessing the over 200,000 cases in Maritime Law Book's case law subscription databases (i.e., the National Reporter System).

3 i Legal Research Guide to Ethics Table of Contents Introduction... Chapter Scope of this guide 1.2 What is legal ethics or professional responsibility? 1.3 Status of the law society rules and codes 1.4 The study of ethics in law schools 1.5 The scope of legal ethics The lawyer=s duty to the public or to the state... Chapter Duty to the state The lawyer=s duty to the courts... Chapter General 3.1 Duty to the court re representation of a client 3.2 Duty to the court to facilitate proceedings 3.3 Duty to the court by a lawyer not to abuse position 3.4 Duty to the court by a lawyer of full disclosure 3.5 Duty to the court of a lawyer not to obstruct justice 3.6 Duty to the court by a lawyer to present all relevant jurisprudence 3.7 Duty to the court by a lawyer where the accused admits to crime 3.8 Duty to the court respecting out-of-court discussions with judges 3.9 Liability of lawyer for costs for improper conduct 3.10 Duty of a lawyer to disclose to the court all relevant documents 3.11 Duty of a lawyer respecting undertakings The lawyer=s duty to the client... Chapter General 4.2 Duty to compromise and settle 4.3 Duty of loyalty 4.4 Duty of competence 4.5 Duty to inform or advise client 4.6 Duty to advise a client re business ethics 4.7 Duty of confidentiality (professional secrecy) 4.8 Duty to a client re conflicts of interest, general principle

4 ii 4.9 Conflicts of interest arising from lawyers' relations 4.10 Conflict of interests, acting for both sides 4.11 Conflict of interests, lawyer acting for several parties 4.12 Conflicts of interest, acting for a corporation 4.13 Conflict of interest, situations resulting in a conflict 4.14 Compensation to lawyer, general 4.15 Compensation to lawyer, duty to inform client 4.16 Compensation to lawyer, duty to keep time records 4.17 Compensation to lawyer, supervisory role of the courts 4.18 Compensation in estate matters 4.19 Compensation due to a lawyer, measure of, relevant considerations 4.20 Negligence, general 4.21 Negligence, settlements 4.22 Negligence, basis of liability 4.23 Negligence versus error of judgment 4.24 Negligence, considerations in determining liability The lawyer=s duty to fellow lawyers... Chapter General and notice of default proceedings 5.2 Requirement of courteous conduct 5.3 Duty of successor lawyer to protect an outstanding account of the former lawyer 5.4 Undertakings to other lawyers, enforcement The lawyer and the law society... Chapter Powers of law societies 6.2 Discipline 6.3 Professional misconduct defined 6.4 Law society rules, guidelines, etc. The Prosecutor... Chapter Role of 7.2 Duties of prosecutor 7.3 Standard of conduct 7.4 Conflict of interest 7.5 Duty to call witnesses The Defence Lawyer... Chapter 8

5 iii 8.1 Extent or limits of duty 8.2 The defence lawyer, termination of relationship 8.3 The defence lawyer, conflict of interest 8.4 The defence lawyer, plea bargaining Preparation of wills... Chapter General 9.2 Duty where testator to disinherit a dependant 9.3 Duty of a lawyer to test the capacity of a testator 9.4 Duty of a lawyer to make notes in cases of doubtful capacity Duty to third parties... Chapter Duty of a lawyer to opposite parties 10.2 Duty arising out of undertaking to third party to pay funds 10.3 Duty of a lawyer to a beneficiary when preparing a will 10.4 Duty of confidentiality to third parties 10.5 Duty owed to the debtor of a client

6 iv NOTES

7 Page 1 Legal Research Guide to Ethics Chapter 1 - Introduction 1.1 Scope of this guide Legal research is the process of finding a case, statute, regulation, text, etc., that is relevant to a legal issue. How does a lawyer resolve a legal issue? First, the lawyer must identify the issue. The issue can, in many cases, be resolved by finding a binding case (a precedent) or a relevant statute or regulation. Case law and statutes and regulations are referred to as primary sources of the law. This legal research guide is meant to provide instruction on how to find cases that are relevant to an issue in the law of ethics or professional conduct for lawyers. This is not a guide to finding relevant statutes or regulations or code provisions. This guide contains some of the first principles of the law of legal ethics or professional conduct for lawyers. The guide does not contain the principles that govern the professional conduct of judges. Each section refers to a principle and to cases that apply the principle. At the end of each section is one of Maritime Law Book=s key numbers that can be used to search for additional cases that apply the principle - search in print law reports or at A key number can be used to do a computer search of a single province or to search simultaneously every common law jurisdiction in Canada. The MLB key numbers set out below are preceded by the words ASearch aid@. The MLB key numbers are useful because a point of law in a case is always assigned the same key number by MLB editors. For example, the key number Barristers and Solicitors Topic 1546 is assigned to all cases that consider the duty of competence of a lawyer to a client (see chapter 4, para. 4.4). A list of MLB key numbers is found in any recent MLB digest (a digest covers 10 volumes in any report series) and at To generate a key number list of cases, at click on AKey Number Search@, click on a title, such as Barristers and Solicitors, and then click on the key number.

8 Page 2 See Appendix in this guide for a complete list of all the key numbers assigned by MLB editors to headings in the topic Barristers and Solicitors. Appendix also includes under each key number a list of cases that have been assigned the key number. The principles or rules stated in this booklet should always be compared with the relevant codes and statutes (e.g., Canadian Bar Association, Code of Professional Conduct; Alberta Code of Professional Conduct; Law Society Act, R.S.O. 1990; Legal Profession Act, R.S.A. 1980, etc). In addition to the case law and statutes and regulations a researcher should consult texts on the subject of legal ethics in Canada. For example, see Professional Conduct for Lawyers and Judges by Beverley G. Smith (2nd Ed. 2002). Legal Ethics by Mark M. Orkin (1957). 1.2 What is legal ethics or professional responsibility? Ethics: the science of morals in human conduct (Canadian Oxford Dictionary (2nd Ed. 2004)) Legal ethics: That branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client (Black=s Law Dictionary (6th Ed.) at page 894). A study of ethics helps us to understand which actions are right and which actions are wrong. The legal ethics of lawyers is governed by the case law and the law society codes that govern the practice of law. The courts have for nearly one thousand years set standards of moral and ethical conduct for legal practitioners. In England a statute in 1274 dealt with abuses by lawyers by prohibiting, inter alia, a lawyer from being a partner in a case and from acting for both sides - see Legal Ethics by Mark M. Orkin (1957) at page 7. Codes: all Canadian provinces and territories have adopted a code of

9 Page 3 professional conduct for lawyers plus supportive legislation. The codes set standards of conduct for lawyers that are designed to benefit the state, its justice systems and the members of the public - See Professional Conduct for Lawyers and Judges by Beverley G. Smith (2002) at chapter 1, para. 6. The codes differ from province to province but they tend to have some common rules governing matters like conflict of interest. The codes are enforced by self-governing bar associations which have authority to discipline members. The codes and the relevant law society legislation and rulings do not cover every fact situation that may arise in a legal day, but they do offer discernable precepts for application to the matter at hand. 1.3 Status of the law society rules and codes Overview: The law society rules and codes do not have the force of statutes, regulations or judicial decisions. But the law society rules and codes do establish a standard of conduct for lawyers.... In the case of Ridge View Development & Holding Co. Ltd. v. Simper (1989), 95 A.R. 282 (Q.B.), the headnote stated: The Law Society of Alberta published a professional conduct handbook - The Alberta Court of Queen's Bench stated that "While I concede that propositions put forward in a handbook published by the Law Society do not by themselves have the force of a judicially accepted legal principle they are, nevertheless, clear and strong guidelines to all members of the Law Society of Alberta as to what are acceptable and recognized guidelines to practitioners should they choose to act in one of these situations. They are also at least one way of measuring whether a lawyer has lived up to the standard of care required". Also the law society rules and codes do not have the force of statutes. In the case of Enerchem Shipmanagement Inc. v. Ship Coastal (1988), 83 N.R. 256 (F.C.A.), the headnote stated: The Federal Court of Appeal stated that "neither the Ontario Rules of

10 Page 4 Professional Conduct nor (and still less) the Commentaries on the Rules can be treated as legislative texts. Nevertheless, they, and in particular the Rules themselves, generally embody the principles laid down by the courts over the years and must be treated with great respect" - See paragraph 5. In the case of Rosin v. MacPhail (1997), 85 B.C.A.C. 69; 138 W.A.C. 69 (C.A.), the British Columbia Court of Appeal stated at para. 16: [16] While the codes may be considered, they should not be applied as if they were statutory provisions governing the issue before the court. As Sopinka, J., said in MacDonald Estate v. Martin (1990), 121 N.R. 1 (S.C.C.), at para. 18: "A code of professional conduct is designed to serve as a guide to lawyers and typically it is enforced in disciplinary proceedings... The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. None the less, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy." But note that law societies are entitled to apply the codes in disciplinary proceedings against lawyers. In the case of Shaw v. Law Society of Prince Edward Island (1992), 101 Nfld. & P.E.I.R. 340; 321 A.P.R. 340 (P.E.I.T.D.), the headnote stated: The Prince Edward Island Supreme Court, Trial Division, stated that Law Societies were entitled to use the Code as a guide in disciplinary proceedings and that the Law Society, in stating that the lawyer's conduct was contrary to the Code, was merely giving particulars of the alleged misconduct - See paragraphs 24 to 38. Further it should be noted that law society rules of conduct do not affect the rights of clients. In the case of Stewart v. Canadian Broadcasting Corp. et al. (1997), 32 O.T.C. 321 (Gen. Div.), the court stated at para. 192:

11 Page 5 [192] In my opinion, the rules and commentaries have two limiting features which are significant here: 1. The Law Society Act, R.S.O. 1990, c. L-8, gives the Law Society through Convocation the power to regulate lawyers' conduct. The Act does not give Convocation the power to regulate clients or their rights. In any event, in the rules and commentaries relevant to the issues herein, Convocation has not attempted to regulate clients or their rights. 2. The rules and commentaries are not an all inclusive code governing lawyers' conduct in every circumstance which may arise in professional life. They address only specific issues, and do so in a variety of ways ranging from mandatory to advisory. Search aid - MLB Key No. - Barristers and Solicitors Topic 5104 is assigned to cases that consider the status of law society rules and codes. See and Appendix for a list of cases that dealt with this issue. See also Professional Conduct for Lawyer and Judges by Beverley G. Smith, chapter 1, para The study of ethics in law schools There are 16 Canadian common law law schools. Fourteen of these law schools offer a credit course in legal ethics. A legal ethics course is compulsory at five of these law schools. Two of these law schools do not offer a credit course in legal ethics, being the University of Toronto and McGill University. In the U.S.A., the American Bar Association, which accredits American law schools, requires that all law students take a course in legal ethics. The American Bar Association Model Rules of Professional Conduct has been adopted by 44 states. 1.5 The scope of legal ethics Overview: The careful lawyer knows that questions of ethics are present in nearly every aspect of the practice of law....

12 Page 6 It is difficult to practice in any area of the law and avoid questions of legal ethics. For example, conflict of interest questions may arise in any work that a lawyer does for a client. Questions of legal ethics are pervasive in the practice of law because of the diverse and often conflicting duties of a lawyer. Some of these duties include: a duty to the client, a duty to the public, a duty to the courts, a duty to third parties, a duty to the law society, etc. And all these duties may exist and conflict at the same time. And they may arise during any work by a lawyer. For example, should a lawyer act for both sides in the purchase and sale of real estate? Should a lawyer act for both the mortgagor and the mortgagee when a client applies for a mortgage loan? Should a criminal defense lawyer crossexamine a prosecution witness, who the lawyer knows to be accurate and truthful, in order to make the witness appear to be mistaken or lying? Should a lawyer give a client, charged with an offense, advice about the law, when the lawyer knows that the advice may induce the client to commit perjury? Should a lawyer act for a client against the client=s spouse, where the lawyer=s current partner was previously a member of a firm that acted for the spouse? Should a lawyer advise a client, who is under investigation by the police, to make no statement to the police under any circumstances? The following chapters consider the various duties owed by lawyers and how the courts have resolved ethical questions and conflicts that arise between the duties owed by lawyers.

13 Page 7 Chapter 2 - The lawyer=s duty to the public or to the state Overview: A lawyer is an officer of the court which requires a standard of conduct that includes a special duty to maintain and uphold the law. 2.1 Duty to the state... The lawyer=s duty to the state includes the entity, its systems and its people. The New Brunswick Code of Professional Conduct (2003), chapter 20, commentary 1, states: AThe paramount duty of the lawyer is to serve the cause of justice@. The British Columbia Canons of Legal Ethics (1992), chapter 1, states: AA lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law@. The lawyer is more than a private citizen. The lawyer has been considered as being almost a public servant. In Mayor of Norwich v. Berry (1767), 4 Burr. 2109, Yates, J. stated at page 2115 AThe Court must have ministers; the attorneys are its ministers@. A lawyer is duty bound not to subvert the legal system. A lawyer must not counsel or assist his client to break or subvert the law. Examples of prohibited conduct are: - making a false recital in a deed; - subornation of perjury; - permitting a client to swear a false affidavit; - assisting a criminal to escape the country; - accepting a transfer of property in fraud of the transferor=s creditors; - the bringing of proceedings for the sole purpose of delay. In the case of Kelly v. Low (2000), 257 A.R. 279 (Q.B.), a lawyer was sued for damages for defamation. The Alberta Court of Queen=s Bench allowed the action and awarded the plaintiff $5,000 punitive damages. At para. 226 the court stated:

14 Page 8 [226]... Ms. McLean referred extensively in her Brief to the Code of Conduct of the Law Society of Alberta. While in many ways I believe Mr. Kelly and Mr. Low deserve each other in the way they behaved, Mr. Low carries special responsibilities as an officer of the court. Society is entitled to expect members of the Law Society to conform to a higher standard of conduct. Mr. Low has fallen below that standard in writing the letter. As a member of the Law Society, it was incumbent upon him to be more sensitive to the issues raised in his letter and how he raised them. I am awarding Mr. Kelly $5,000 in punitive damages to punish Mr. Low for a standard of conduct I feel falls below that which the public is entitled to expect from a member of the Law Society. In the case of R. v. Morrison a lawyer was charged and convicted of fraud. In considering sentence the Nova Scotia Court of Appeal stated that a lawyer has a special duty to avoid criminal conduct. See R. v. Morrison (1975),13 N.S.R.(2d) 98; 9 A.P.R. 98 (C.A.). At para. 13 the Court of Appeal stated: [13] Furthermore, even had no client been involved, we must especially denounce crimes of fraud and forgery committed by a member of the Bar, a sworn officer of this Court. Such a man has a special duty. We must deal with a breach of that duty temperately, mercifully and without undue righteousness, but at the same time firmly and to warn others. Search aid - MLB Key No. - Barristers and Solicitors Topic 2041 is assigned to cases that consider the lawyer=s duty to the public or the state. See and Appendix for a list of cases that dealt with this issue.

15 Page 9 Chapter 3 - The lawyer=s duty to the courts Overview: The lawyer is an officer of the courts. A lawyer when acting for a client has Aa prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other licence which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer@ - see Queen v. O=Connell (1844), 7 I.L.R. 261, at page General... The case law and the codes refer to the duty of courtesy and respect owed by a lawyer to the courts. One purpose of this duty is to enhance public confidence in the administration of justice. See Professional Conduct for Lawyers and Judges by Beverley G. Smith at chapter 1, para. 35 and Legal Ethics by Mark M. Orkin at page 32. But at the same time a lawyer has a duty to resist any attempt to influence him in the execution of his duties to the client. See chapter Duty to the court re representation of a client In the case of R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127 W.A.C. 279 (C.A.), the headnote stated: An unpaid defence counsel was denied leave to withdraw from the case on the eve of a scheduled two week trial - The Alberta Court of Appeal stated that "independent of his obligations to his client, a lawyer who has accepted a general retainer from an accused and who has then gone on record for him before the trial court, is obligated to the court to continue to represent him unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of the accused's consent to the termination of his employment. Cause includes unhappy differences that make it impossible for the lawyer to defend, but does not include nonpayment of fees." - See paragraph 2. Search aid - MLB Key No. - Barristers and Solicitors Topic 651 is assigned to cases that consider the lawyer=s duty to the court re representation of a client. See and Appendix for a list of cases that dealt with this issue.

16 Page Duty to the court to facilitate proceedings In the case of Ashmore et al. v. Corporation of Lloyd's (1992), 145 N.R. 344 (H.L.), the headnote stated: The House of Lords stated that "the parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner." - See paragraph 25. In the case of Northern Meat Packers Ltd. and Restigouche Abattoir Ltd. v. Bank of Montreal; Bank of Montreal v. Bourgoin (1984), 52 N.B.R.(2d) 196; 137 A.P.R. 196 (T.D.), the headnote stated: The New Brunswick Court of Queen's Bench, Trial Division, rejected the notion that in our adversary system a defendant may wait and allow a plaintiff to do nothing until sufficient time has lapsed to apply for dismissal for want of prosecution - The court adopted the view that litigation and the thrust of the Rules of Court are grounded on a mutual obligation to expedite trial and decision - See paragraphs 60 to 62. In the case of Mireau v. Canada et al. (1995), 128 Sask.R. 142; 85 W.A.C. 142 (C.A.), the headnote stated: Mireau's appeal was dismissed for want of prosecution after failing to serve and file an appeal book and factum within the time required by court order - Mireau's solicitor did nothing - He did not file the documents, nor apply to the court to withdraw as solicitor of record - The Saskatchewan Court of Appeal stated that "when counsel goes on record for an appellant he thereby incurs an obligation to keep the matter moving by complying with the rules respecting the requisition of a transcript of the evidence (where applicable) but also any directions that the court may make.... Since those directions were ignored without any application to vary the time limits... [the solicitor] failed to fulfil his professional obligation to this court....

17 Page 11 where an appellant decides to take no further steps counsel should obtain instructions to immediately abandon the appeal, thereby saving unnecessary applications and consequent costs." - See paragraphs 4 to 5. Search aid - MLB Key No. - Barristers and Solicitors Topic 652 is assigned to cases that consider the duty of a lawyer to the court to facilitate proceedings. See and Appendix for a list of cases that dealt with this issue. 3.3 Duty to the court by a lawyer not to abuse position In the case of Silver Jack Mines Ltd. v. McCarthy (1983), 51 N.B.R.(2d) 160; 134 A.P.R. 160 (T.D.), the headnote stated: Two lawyers were shareholders of a company whose assets were being wrongfully held as security by another shareholder - Under the guise of claiming a debt owed to the company by the shareholder the lawyers issued a writ of capias and had the shareholder arrested - The sole purpose of issuing the writ was to remove the shareholder from his property to allow the lawyers and others to enter the shareholder's land and seize the company assets - The New Brunswick Court of Queen's Bench held that the lawyers' conduct was both distasteful and an abuse of their position as members of the judiciary - See paragraphs 32, 38. Search aid - MLB Key No. - Barristers and Solicitors Topic 653 is assigned to cases that consider the duty of a lawyer to the court not to abuse his or her position. See and Appendix for a list of cases that dealt with this issue. 3.4 Duty to the court by a lawyer of full disclosure In the case of Comear, Re (1986), 77 N.S.R.(2d) 57; 191 A.P.R. 57 (T.D.), the headnote stated: Relevant case law - The Nova Scotia Supreme Court, Trial Division, referred to the duty of counsel to disclose an appeal decision that varied a trial decision upon which counsel's proposition or submission was based, if that decision was known to counsel - See paragraph 44.

18 Page 12 In the case of Transport Trailer Sales v. Robinson (2001), 147 O.A.C. 268 (Div. Ct.), the headnote stated: The defendant/appellant subpoenaed two witnesses who did not appear at trial - Counsel for the plaintiff had spoken to both witnesses asking them about the conduct money they had received and advising them that their attendance could not be compelled because they had not been paid sufficient conduct money - The Ontario Divisional Court stated that as an officer of the court, plaintiff's counsel had an obligation to reveal that information to the trial judge - It appeared that the evidence of the two witnesses could materially corroborate the defendant's case and if the trial judge had been aware of counsel's discussion with the witnesses in the context of a self-represented party, he would likely have afforded the defendant an opportunity to present that evidence - The court ordered a new trial. In the case of Myers v. Elman, [1939] All E.R. 484 (H.L.), the House of Lords stated at p. 491: If the defendants are guilty of the alleged frauds, it is hardly to be expected that they will make adequate affidavits without considerable pressure. However guilty they may be, an honourable solicitor is perfectly justified in acting for them and doing his very best in their interests, with, however, the important qualification that he is not entitled to assist them in any way in dishonourable conduct in the course of the proceedings. The swearing of an untrue affidavit of documents is perhaps the most obvious example of conduct which his solicitor cannot knowingly permit. He must assist and advise his client as to the latter's bounden duty in that matter, and, if the client should persist in omitting relevant documents from his affidavit, it seems to be plain that the solicitor should decline to act for him any further. He cannot properly, still less can he consistently with his duty to the court, prepare and place upon the file a perjured affidavit. Search aid - MLB Key No. - Barristers and Solicitors Topic 654 is assigned to cases that consider the duty of a lawyer to the court to make full disclosure. See and Appendix for a list of cases that dealt with this issue. 3.5 Duty to the court of a lawyer not to obstruct justice

19 Page 13 In the case of R. v. Goddard (D.) (1995), 206 N.R. 69; 193 A.R. 47; 135 W.A.C. 47 (S.C.C.), the headnote stated: Goddard was charged with a criminal offence - Goddard asked that the case be heard and resisted the Crown's application for an adjournment - Goddard then informed the court that the Crown was not in a position to produce witnesses and asked for a dismissal - Subsequently, the Crown charged Goddard with obstruction and requested a new trial - The Crown submitted that Goddard knew where the witnesses were and that they were available - The Crown also claimed that Goddard had undertaken to inform the police officers when they would be needed as witnesses - The Supreme Court of Canada, in affirming Goddard's acquittal, observed that while the conduct was not criminal, it would have been unethical if engaged in by a lawyer - See paragraph 2. In the case of R. v. Sweezey (G.G.) (1987), 63 Nfld. & P.E.I.R. 308; 194 A.P.R. 308 (Nfld. T.D.), the headnote stated: The Newfoundland Supreme Court, Trial Division, in sentencing the accused lawyer to 18 months in prison for wilfully attempting to obstruct justice, stated that a lawyer who attempts to obstruct justice by wilfully counseling a witness to be forgetful and evasive not only commits an offence contrary to s. 127 of the Criminal Code but also breaches his solemn duty as an officer of the court to uphold the course of justice - See paragraphs 6 to 8. Search aid - MLB Key No. - Barristers and Solicitors Topic 658 is assigned to cases that consider the duty of a lawyer to the court not to obstruct justice. See and Appendix for a list of cases that dealt with this issue. 3.6 Duty to the court by a lawyer to present all relevant jurisprudence In the case of R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109 (C.A.), the headnote stated: In a breathalyzer case, accused's counsel failed to cite relevant decisions of the Court of Appeal and Supreme Court of Canada which were against him - The Alberta Court of Appeal stated that "it is counsel's duty to look for and cite to the court all relevant authority, whether it is for or against him, as has been well known for 70 years" -

20 Page 14 See paragraphs 17 to 19 Search aid - MLB Key No. - Barristers and Solicitors Topic 660 is assigned to cases that consider the duty of a lawyer to the court to disclose all relevant jurisprudence. See and Appendix for a list of cases that dealt with this issue. 3.7 Duty to the court by a lawyer where the accused admits to crime In the case of R. v. Li (C.M.) (1993), 36 B.C.A.C. 181; 58 W.A.C. 181 (C.A.), the headnote stated: An accused charged with robbery admitted to his lawyer that he did it - The British Columbia Court of Appeal stated that the common understanding was that the lawyer could not call the accused or any other person to testify that the accused did not do it - Although the lawyer could not set up defences inconsistent with the admission, he could test the proof of the case in every proper way (e.g., challenging the sufficiency of identification evidence) - See paragraphs 57 to 74. Search aid - MLB Key No. - Barristers and Solicitors Topic 663 is assigned to cases that consider the duty of a lawyer to the court where the accused admits to crime. See and Appendix for a list of cases that dealt with this issue. 3.8 Duty to the court respecting out-of-court discussions with judges In the case of R. v. Mid Valley Tractor Sales Ltd. and Scott (1993), 140 N.B.R.(2d) 46; 358 A.P.R. 46 (T.D.), the court stated at paras. 13 and 14: [13] There are a number of cases to the effect that the "practice of counsel going to see judges is in general an undesirable one". Some of the cases are referred to in A Book for Judges by The Hon. J.O. Wilson, published by the Canadian Judicial Council in 1980, beginning at pages 52 and 64. One of the cases cited in A Book for Judges includes the following observation: "It appears that during the course of the trial the learned trial judge called counsel into his chambers to discuss certain aspects of the trial as the trial progressed. It appears also that this was done in the office of the learned trial judge and in the absence of the respondent. This is a practice that must be