Chapter 1: Citation and Interpretation

Chapter 1    Citation and Interpretation 

SECTION 1.0 CITATION

1.0-1 These rules may be cited as the Rules of Professional Conduct.

SECTION 1.1 DEFINITIONS

1.1-1 In these rules, unless the context requires otherwise,

" affiliated entity" means any person or group of persons other than a person or group authorized to practise law in or outside Ontario;

[New - May 2001]

"affiliation" means the joining on a regular basis of a lawyer or group of lawyers with an affiliated entity in the delivery or promotion and delivery of the legal services of the lawyer or group of lawyers and the non-legal services of the affiliated entity;

[New - May 2001]

"associate" includes:

(a) a licensee who practises law in a law firm through an employment or other contractual relationship, and

(b) a non-licensee employee of a multi-discipline practice providing services that support or supplement the practice of law;

[Amended - September 2010, October 2014]

"client" means a person who:

(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or

(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf

and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work;

[Amended - October 2014]

Commentary

[1] A solicitor and client relationship may be established without formality.

[2] When an individual consults a lawyer in a representative capacity, the client is the corporation, partnership, organization, or other legal entity that the individual is representing.

[3] For greater clarity, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established.

[Amended - October 2014]

"conduct unbecoming a barrister or solicitor" means conduct, including conduct in a lawyer's personal or private capacity, that tends to bring discredit upon the legal profession including, for example,

(a) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer,

(b) taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another, or

(c) engaging in conduct involving dishonesty or conduct which undermines the administration of justice;

[Amended - May 2008, October 2014]

“conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer;

Commentary

[1] In this context, "substantial risk" means that the risk is significant and plausible, even if it is not certain or even probable that the material adverse effect will occur.

[New - October 2014]

"consent" means fully informed and voluntary consent after disclosure

(a) in writing, provided that, where more than one person consents, each signs the same or a separate document recording the consent, or

(b) orally, provided that each person consenting receives a separate written communication recording their consent as soon as practicable;

[Amended - October 2014]

"independent legal advice" means a retainer where

(a) the retained lawyer, who may be a lawyer employed as in-house counsel for the client, has no conflicting interest with respect to the client's transaction,

(b) the client's transaction involves doing business with

(i) another lawyer,

(ii) a corporation or other entity in which the other lawyer has an interest other than a corporation or other entity whose securities are publicly traded, or

(iii) a client of the other lawyer,

(c) the retained lawyer has advised the client that the client has the right to independent legal representation,

(d) the client has expressly waived the right to independent legal representation and has elected to receive no legal representation or legal representation from the other lawyer,

(e) the retained lawyer has explained the legal aspects of the transaction to the client, who appeared to understand the advice given, and

(f) the retained lawyer informed the client of the availability of qualified advisers in other fields who would be in a position to give an opinion to the client as to the desirability or otherwise of the proposed investment from a business point of view;

"independent legal representation" means a retainer where

(a) the retained lawyer, who may be a lawyer employed as in-house counsel for the client, has no conflicting interest with respect to the client's transaction, and

(b) the retained lawyer will act as the client's lawyer in relation to the matter;

Commentary

[1] Where a client elects to waive independent legal representation but to rely on independent legal advice only, the retained lawyer has a responsibility that should not be lightly assumed or perfunctorily discharged.

"interprovincial law firm" means a law firm that carries on the practice of law in more than one province or territory of Canada;

"law firm" includes one or more lawyers practising

(a) in a sole proprietorship,

(b) in a partnership,

(c) as a clinic under the Legal Aid Services Act, 1998,

(d) in a government, a Crown corporation, or any other public body, or

(e) in a corporation or other body;

"Law Society" means The Law Society of Upper Canada;

"lawyer" means a person licensed by the Law Society to practise law as a barrister and solicitor in Ontario and includes a candidate enrolled in the Law Society's Licensing Process for lawyers;

"legal practitioner" means a person

(a) who is a licensee; or

(b) who is not a licensee but who is a member of the bar of a Canadian jurisdiction, other than Ontario, and who is authorized to practise law as a barrister and solicitor in that other jurisdiction;

[New - June 2009]

"licensee" means a lawyer or a paralegal;

"limited scope retainer" means the provision of legal services by a lawyer for part, but not all, of a client's legal matter by agreement between the lawyer and the client;

[New - September 2011]

"paralegal" means a person licensed by the Law Society to provide legal services in Ontario;

"professional misconduct" means conduct in a lawyer's professional capacity that tends to bring discredit upon the legal profession including

(a) violating or attempting to violate one of these rules, a requirement of the Law Society Act or its regulations or by-laws,

(b) knowingly assisting or inducing another legal practitioner to violate or attempt to violate the rules in these rules, the Paralegal Rules of Conduct or a requirement of the Law Society Act or its regulations or by-laws,

(c) knowingly assisting or inducing a non-licensee partner or associate of a multi-discipline practice to violate or attempt to violate the rules in rules or a requirement of the Law Society Act or its regulations or by-laws,

(d) misappropriating or otherwise dealing dishonestly with a client's or a third party's money or property,

(e) engaging in conduct that is prejudicial to the administration of justice,

(f) stating or implying an ability to influence improperly a government agency or official, or

(g) knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

[Amended - June 2009]

"tribunal" includes courts, boards, arbitrators, mediators, administrative agencies, and bodies that resolve disputes, regardless of their function or the informality of their procedures.