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The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, we’ve listed the ruling below but it can also be found in our Ethics Rulings Database.
If you have any questions or concerns regarding this post, please contact the Law Society at (306) 569-8242 or 1-833-733-0133.
Date: December 6, 2018
Cite as: 2018 SKLSPC 12
Classification: Formation of Solicitor/Client Relationship, Rule 1.1-1, Duty to Avoid Conflicts of Interest, Rule 3.4-1
Practice Area: Health Law
Ethics Committee Ruling:
This was a Request for Ruling by Lawyer X as to whether they are in a solicitor/client relationship with patients they see who have been certified under The Mental Health Services Act (the “Act”) as part of their duties as an Official Representative appointed by the Province.
Lawyer X’s duties as an Official Representative are outlined by The Mental Health Services Regulations (the “Regulations”). While Lawyer X maintains separate files for each patient, Lawyer X does not open a separate file for the patients they see in their recording system for the purpose of conflict checks as they do not consider the individual patient to be their client, but rather, they consider the Province to be their client. Accordingly, Lawyer X does not conduct a conflict search prior to meeting with and advising patients that they see under the Act, nor are they included in any future conflict checks. Lawyer X indicated that the patient does not give them any information, and they only advise the patient of their rights and assists them with an appeal of their detention if requested, among the other duties legislated. Lawyer X noted that patients will often speak for themselves before the appeal panel, however there are times when Lawyer X will speak for them. Lawyer does not believe that there would be a conflict if they were retained by a third party to act against a patient they had seen, as they describe their actions as “administrative”; the patient does not provide them with confidential information, and the medical information they receive is directly from the hospital in the form required by the legislation. If a patient wants to pursue other legal matters outside of Lawyer X’s duties under the Regulations, Lawyer X advises the patient that he/she will need to obtain their own lawyer.
The Ethics Committee determined that this type of work does not fit under “the auspices of pro bono or not-for-profit legal services”. The member is paid by the government, and therefore the Rules regarding short-term legal services do not apply. The patients seen by the member are clients, like any individual that a lawyer represents is his/her client. The member is provided with the patient’s name in advance of meeting with the individual and therefore, a conflict search should be conducted before accepting the engagement. In the event the member is at the hospital and is advised of a new patient that needs to be seen, the member should first obtain a conflict check either by contacting his/her office to obtain a conflict check while he/she remains at the hospital or by returning to his/her office to obtain same. The Committee is aware of jurisdictions where conflict searches are being completed by lawyers appointed as Official Representatives under the Act prior to the lawyer meeting the patient. The member has access to a significant amount of confidential information for each of the patients that he/she sees, such as their personal medical records, and accordingly there is a substantial risk of a conflict of interest to occur. For example, the lawyer will have substantial information about a patient’s mental health that could be directly relevant to other matters such as if his/her law firm advises on matters involving the Ministry of Social Services, family law, etc.
The identification rules are met as the lawyer may rely on the identification obtained by the apprehension, and the health card number in the medical records. This would constitute reasonable measures as outlined in the identification Rules of the Law Society of Saskatchewan.
Before accepting, as a client, a patient referred under the Act to the member, a conflict check should be performed and, if the member does not have a conflict in representing the patient, the individual patient should be entered as a client into whatever recording system the lawyer uses to ensure that the names of the individuals appear on future conflict searches.