Professional Liability & Legal Ethics

Conference held in Toronto on February 17, 1998
Chairs: J. Bruce Carr-Harris, Scott & Aylen; and Brian G. Morgan, Osler, Hoskin & Harcourt

Book: over 285 pages of original articles
CD-ROM: over five hours of audio/video plus book content

To purchase, please contact Federated Press.

Ethics and liability for the legal profession

Ethics for lawyers
Philip M. Epstein, QC, Epstein, Cole

• Rising discipline cases: a concern to the Law Society
• Lawyers as mediators and client confusion
• Rules of conduct pertaining to lawyers as mediators
• The Law Society’s discipline process
• Stitchcom case: Supreme Court of Canada’s view of disclosure
• The growing animosity between the Bar and Law Society

Fiduciary obligations of the lawyer-client relationship
Stephen M. Grant, Gowling, Strathy & Henderson

• Fiduciary duties in legal practice today
• Confidentiality, loyalty and disclosure
• Risks in acting for both sides
• Client conflict and solicitor’s self-interests
• Business transactions with clients
• Advising independent legal advice

Professional liability insurance
Caron E. Wishart, Vice-President, Claims, Lawyers’ Professional Indemnity Company (LPIC)

• Significant costs: misconduct and malpractice
• LPIC’s and LSUC’s distinct mandates
• Ethical breaches and liability insurance
• Coverage under insurance program
• Why lawyers err: the Gold Report
• LPIC’s new risk management initiative
• Managing the solicitor-client relationship

Substantive areas of liability exposure for the litigation practice
Colin L. Campbell, QC, McCarthy Tétrault

• Basic duties of lawyers as directors/business persons
• Conflict situations and increasing claims in the U.S.
• Factors in exposure to potential liability for lawyer/director
• Arguments for and against lawyers as directors
• Conflict guidelines for directorships
• Engagement letter and transfer affidavit

Professional liability in the law firm

Potential liability arising out of the lawyer-client relationship
Wendy J. Earle, Borden & Elliot

• Difficulties in intra-family transactions
• Pitfalls and misconceptions of the "family lawyer"
• The lawyer facing a "Lear-type" intra-family
• The inherent risks of the joint retainer
• Solicitor’s liability to non-client third parties
• Undue influence and unconscionability
• Gifts, mortgages and guarantees
• Importance of knowing your client

Conflicts of interest
Sandra A. Forbes, Davies, Ward & Beck

• Test for removal: confidential information
• Reasonable measures of non-disclosure
• Improper conduct and breach of ethics
• "Real mischief" test to remove a law firm
• The need for different tests for removal
• Alternatives to extreme remedy of removal
• MacDonald Estate’s conflict of interest test
• The dangers inherent in removal motions
• Legal response to unfounded removal motions

Emerging issues for professional liability in the electronic age
Robert S. Russell, Borden & Elliot

• Computer-assisted research and liability potential
• New requirements for "standard research techniques"
• Limitations of research through electronic databases
• Problems with technological use and increasing reliance
• Jeopardized confidentiality and privilege
• Adapting to available technologies
• Security risks in mobile communications
• Unauthorized access to a firm’s network

Defenses to allegations of liability
Benjamin Zarnett, Goodman Phillips & Vineberg

• Bases of the solicitor's liability for professional services
• Duties and defences arising from the retainer
• Duties and defences arising from instructions
• Liability and standard of a reasonably competent solicitor
• Duties arising from holding out as an expert
• Case law on propriety in conflict of interest situation
• Case law on defences to fiduciary claims
• Contributory negligence as a means to reduce liability

Risk management and quality control as preventative measures
Joel Richler, Blake, Cassels & Graydon

• Inappropriate breach of fiduciary duty claims
• Liability claims and standard of care
• Common areas of liability facing lawyers
• Breach of retainer agreements
• Clarifying retainers with different clients
• Disclosing pertinent facts to the client
• Recent case law: liability to third parties
• Communicating with the client
• Practice obligations versus client needs

Audio: 33 minutes • Speaker’s paper: 11,632 word

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