This Week in Legal Ethics – New Conduct Review Ruling

May 9, 2018

By Melanie Hodges Neufeld

As I mentioned in a previous post, the fact situation and outcome of Conduct Reviews are published anonymously on the Law Society website in our Conduct Review Database. A Conduct Review is a face to face meeting with a member who is the subject of a complaint that raises conduct issues ‘close to the line’ of conduct unbecoming. The meeting is meant to assist the member identify and accept responsibility for the conduct that caused concern, to learn from the complaint and Conduct Review, and to change their conduct to proactively prevent similar situations in the future. The Conduct Reviews are published to provide guidance to the profession. Below is a recent Conduct Review.

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Category:  Breach of Trust Conditions
Practice Area:    Family Law
Code:   5.1-6; 7.2-11
E-cite:   2018 SKLSCR 1   
Date:    April 30, 2018

Summary:        

Client A was initially represented by Member A.  Member A requested disclosure from Member B, counsel for Party B.  Member B provided Party B’s disclosure under trust conditions. At a later date, Member A requested leave to withdraw as counsel for Client A.  Leave was granted, and Member C was retained by Client A.

After their retention, Member C requested that Member B amend their trust conditions so that Member A could provide Party B’s disclosure directly to Member C, instead of being returned to Member B as required by the original trust conditions.  Member B agreed to amend the trust conditions so that Member C could obtain the disclosure directly from Member A.  The cover letters to Member A and subsequent cover letters to Member C regarding Party B’s disclosure clearly outlined the trust conditions.

The matter was set down for a Pre-Trial Conference.  At the Pre-Trial Conference, Member C advised the Court and Member B that they were moving and could no longer be Client A’s lawyer.  The Court was advised that Member D, who attended the Pre-Trial Conference, would be taking carriage of the file.

Following the Pre-Trial Conference, Member C proceeded to transfer Client A’s file to Member D, inclusive of Party B’s disclosure.  Member C did not request that Member B amend the trust conditions.  Member D was not placed under trust conditions regarding the disclosure by Member C. When the solicitor-client relationship between Member D and Client A ended, Member D provided Client A with their file upon request, inclusive of Party B’s disclosure.

The Conduct Investigation Committee recognized and considered the importance of trust conditions and the necessity of lawyers, and their clients, being able to rely on other lawyers complying with trust conditions and/or undertakings.  That being said, the Committee believed that the breach of trust conditions was an isolated incident – a true mistake that while serious, does not require disciplinary proceedings to be pursued.  Member C admitted the misconduct; took accountability and attempted to remedy the matter as best they could.  The Committee determined that Member C’s actions were not a part of a pattern of misconduct or incompetence.

The Conduct Investigation Committee recommended a “Conduct Review”. The Conduct Review Committee met with Member C and discussed the issue giving rise to the complaint; the members response and the learning opportunities that exist.  As a result of the meeting, the Conduct Review Committee is confident that Member C fully recognizes the seriousness of the matter and has taken steps to ensure a similar incident does not occur in the future.