Chapter 5 — Relationship to The Administration of Justice
SECTION 5.1 THE LAWYER AS ADVOCATE
Advocacy
5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
[Amended - October 2014]
5.1-2 When acting as an advocate, a lawyer shall not
(a) abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party,
(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable,
(c) appear before a judicial officer when the lawyer, the lawyer's associates or the client have business or personal relationships with the officer that give rise to or might reasonably appear to give rise to pressure, influence, or inducement affecting the impartiality of the officer, unless all parties consent and it is in the interests of justice,
(d) endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of a tribunal or any of its officials in any case or matter by any means other than open persuasion as an advocate,
(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,
(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,
(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,
(h) make suggestions to a witness recklessly or knowing them to be false;
(i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent,
(j) improperly dissuade a witness from giving evidence or advise a witness to be absent,
(k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another,
(l) knowingly misrepresent the client's position in the litigation or the issues to be determined in the litigation;
(m) needlessly abuse, hector, or harass a witness,
(n) when representing a complainant or potential complainant, attempt to gain a benefit for the complainant by threatening the laying of a criminal charge or by offering to seek or to procure the withdrawal of a criminal charge,
(o) needlessly inconvenience a witness; or
(p) appear before a court or tribunal while under the influence of alcohol or a drug.
[Amended - October 2014]
[Amended - October 2014]
Incriminating Physical Evidence
5.1-2A A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.
Duty as Prosecutor
5.1-3 When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
Discovery Obligations
5.1-3.1 Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate
(a) shall explain to their client
(i) the necessity of making full disclosure of all documents relating to any matter in issue, and
(ii) the duty to answer to the best of their knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal;
(b) shall assist the client in fulfilling their obligations to make full disclosure; and
(c) shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.
Disclosure of Error or Omission
5.1-4 A lawyer who has unknowingly done or failed to do something that if done or omitted knowingly would have been in breach of the rules in Section 5.1 and who discovers it, shall, subject to the rules in Section 3.3 (Confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.
Courtesy
5.1-5 A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings.
[Amended - October 2014]
[Amended - October 2014]
Undertakings
5.1-6 A lawyer must strictly and scrupulously fulfill any undertakings given by him or her and honour any trust conditions accepted in the course of litigation.
[Amended - June 2009]
Agreement on Guilty Plea
5.1-7 Before a charge is laid or at any time after a charge is laid, a lawyer for an accused or potential accused may discuss with the prosecutor the possible disposition of the case, unless the client instructs otherwise.
5.1-8 A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a guilty plea if, following investigation,
(a) the lawyer advises the client about the prospects for an acquittal or finding of guilt;
(b) the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and discretion of the court, including the fact that the court is not bound by any agreement about a guilty plea;
(c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged; and
(d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.
[Amended - October 2014]
SECTION 5.2 THE LAWYER AS WITNESS
Submission of Evidence
5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless
(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or
(b) the matter is purely formal or uncontroverted.
[Amended - October 2014]
Appeals
5.2-2 A lawyer who is a witness in proceedings shall not appear as advocate in any appeal from the decision in those proceedings unless the matter about which he or she testified is purely formal or uncontroverted.
[Amended - October 2014]
SECTION 5.3 INTERVIEWING WITNESSES
Interviewing Witnesses
5.3-1 Subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8.2, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer shall disclose the lawyer's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.
[Amended - November 2007]
SECTION 5.4 COMMUNICATION WITH WITNESSES GIVING EVIDENCE
Communication with Witnesses Giving Evidence
5.4-1 [FLSC - not in use]
5.4-2 Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:
(a) during examination-in-chief, the examining lawyer may discuss with the witness any matter that has not been covered in the examination up to that point;
(a.1) during examination-in-chief by another legal practitioner of a witness who is unsympathetic to the lawyer's cause, the lawyer not conducting the examination-in-chief may discuss the evidence with the witness;
(a.2) between completion of examination-in-chief and commencement of cross-examination of the lawyer's own witness, the lawyer ought not to discuss the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief;
(b) during cross-examination by an opposing legal practitioner, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding;
(c) [FLSC - not in use]
(c.1) between completion of cross-examination and commencement of re-examination, the lawyer who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on re-examination;
(c.2) during cross-examination by the lawyer of a witness unsympathetic to the cross-examiner's cause, the lawyer may discuss the witness's evidence with the witness;
(c.3) during cross-examination by the lawyer of a witness who is sympathetic to that lawyer's cause, any conversations ought to be restricted in the same way as communications during examination-in-chief of one's own witness; and
(c.4) during re-examination of a witness called by an opposing legal practitioner, if the witness is sympathetic to the lawyer's cause the lawyer ought not to discuss the evidence to be given by that witness during re-examination. The lawyer may, however, properly discuss the evidence with a witness who is adverse in interest.
[Amended - June 2009]
[Amended - June 2009]
SECTION 5.5 RELATIONS WITH JURORS
Communications Before Trial
5.5-1 When acting as an advocate, before the trial of a case, a lawyer shall not communicate with or cause another to communicate with anyone that the lawyer knows to be a member of the jury panel for that trial.
Disclosure of Information
5.5-2 Unless the judge and opposing counsel have previously been made aware of the information, a lawyer acting as an advocate shall disclose to them any information of which the lawyer is aware that a juror or prospective juror
(a) has or may have an interest, direct or indirect, in the outcome of the case;
(b) is acquainted with or connected in any manner with the presiding judge, any counsel or any litigant; or
(c) is acquainted with or connected in any manner with any person who has appeared or who is expected to appear as a witness.
5.5-3 A lawyer shall promptly disclose to the court any information that the lawyer reasonably believes discloses improper conduct by a member of a jury panel or by a juror.
[Amended - October 2014]
Communication During Trial
5.5-4 Except as permitted by law, when acting as an advocate, a lawyer shall not during a trial of a case communicate with or cause another to communicate with any member of the jury.
5.5-5 and 5.5-6 [FLSC - not in use]
SECTION 5.6 THE LAWYER AND THE ADMINISTRATION OF JUSTICE
Encouraging Respect for the Administration of Justice
5.6-1 A lawyer shall encourage public respect for and try to improve the administration of justice.
Seeking Legislative or Administrative Changes
5.6-2 A lawyer who seeks legislative or administrative changes shall disclose the interest being advanced, whether the lawyer's interest, the client's interest, or the public interest.
Security of Court Facilities
5.6-3 A lawyer who has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility shall inform the persons having responsibility for security at the facility and give particulars.
[Amended - October 2014]
SECTION 5.7 LAWYERS AS MEDIATORS
Role of Mediator
5.7-1 A lawyer who acts as a mediator shall, at the outset of the mediation, ensure that the parties to it understand fully that
(a) the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue; and
(b) although communications pertaining to and arising out of the mediation process may be covered by some other common law privilege, they will not be covered by the solicitor-client privilege.
[Amended - October 2014]