Rule 4: Advocacy

Rule 4 Advocacy

4.01 THE PARALEGAL AS ADVOCATE

Duty to Clients, Tribunals and Others

4.01 (1) When acting as an advocate, the paralegal shall represent the client resolutely and honourably within the limits of the law while, at the same time, treating the tribunal and other licensees with candour, fairness, courtesy and respect.

(2) This rule applies to appearances and proceedings before all tribunals in which the paralegal may appear.

(3) This rule does not require a paralegal, except as otherwise provided in these Rules, to assist an adversary or advance matters derogatory to the client's case.

(4) Without restricting the generality of subrule (1), the paralegal shall,

(a) raise fearlessly every issue, advance every argument, and ask every question, however distasteful, that the paralegal thinks will help the client's case;

(b) endeavour, on the client's behalf, to obtain the benefit of every remedy and defence authorized by law;

(c) never waive or abandon a client's legal rights, for example, an available defence under a statute of limitations, without the client's informed consent; and

(d) avoid and discourage the client from resorting to frivolous and vexatious objections, or from attempts to gain advantage from mistakes or oversights not going to the merits, or from tactics designed to merely delay or harass the other side.

The Paralegal and the Tribunal Process

(5) When acting as an advocate, the paralegal 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 paralegal considers to be dishonest or dishonourable;

(c) 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 deception, crime or illegal conduct;

(d) deliberately refrain from informing the tribunal of any binding authority that the paralegal considers to be directly on point and that has not been mentioned by an opponent;

(e) appear before a judicial officer when the paralegal, a partner of the paralegal, a paralegal employed by the paralegal firm or the client has a business or personal relationship with the officer that gives 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;

(f) 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;

(g) make suggestions to a witness recklessly or knowing them to be false;

(h) endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of the tribunal or any of its officials in any case or matter by any means other than open persuasion as an advocate;

(i) 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;

(j) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another;

(k) knowingly misrepresent the client's position in the litigation or the issues to be determined in the litigation;

(l) needlessly abuse, hector, harass or inconvenience a witness;

(m) improperly dissuade a witness from giving evidence or suggest that a witness be absent;

(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; and

(p) appear before a court or tribunal while under the influence of alcohol or a drug.

[Amended - October 2014]

Duty as Prosecutor

(5.1) When acting as a prosecutor, a paralegal 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.

[New - May 2010]

Incriminating Physical Evidence

(5.2) A paralegal 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.

[New - April 2016]

Disclosure of Documents

(6) If the rules of a tribunal require the parties to produce documents, a paralegal, when acting as an advocate,

(a) shall explain to his or her client the necessity of making full disclosure of all documents relating to any matter in issue and the duty to answer to the best of his or her knowledge, information and belief, any proper question relating to any issue in the action;

(b) shall assist the client in fulfilling his or her obligation to make full disclosure; and

(c) shall not make frivolous requests for the production of documents or make frivolous demands for information.

Errors and Omissions

(7) A paralegal who does, or fails to do, something which may involve a breach of this rule, shall, subject to rule 3.03 relating to confidentiality, disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

Agreement on Guilty Pleas

(8) Before a charge is laid or at any time after a charge is laid, a paralegal acting for an accused or potential accused may discuss with the prosecutor the possible disposition of the case, unless the client instructs otherwise.

(9) A paralegal, on behalf of his or her client, may enter into an agreement with a prosecutor about a guilty plea, if, following investigation,

(a) the paralegal advises the client about the prospects for an acquittal or finding of guilt;

(b) the paralegal 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 is prepared voluntarily to admit the necessary factual and mental elements of the offence charged; and

(d) the client voluntarily instructs the paralegal to enter into an agreement as to a guilty plea.

4.02 INTERVIEWING WITNESSES

Interviewing Witnesses

4.02 (1) Subject to the rules on communication with a represented party at Rule 7.02, a paralegal may seek information from any potential witness, whether under subpoena or not, but shall disclose the paralegal's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.

[Amended - October 2014]

4.03 COMMUNICATION WITH WITNESSES GIVING TESTIMONY

Communication with Witnesses Giving Testimony

4.03 (1) Subject to the direction of the tribunal, a paralegal shall observe the following rules respecting communication with witnesses giving evidence:

(a) During examination-in-chief, the examining paralegal may discuss with the witness any matter that has not been covered in the examination up to that point.

(b) During examination-in-chief by another licensee of a witness who is unsympathetic to the paralegal's cause, the paralegal not conducting the examination-in-chief may discuss the evidence with the witness.

(c) Between completion of examination-in-chief and commencement of cross-examination of the paralegal's own witness, the paralegal ought not to discuss the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief.

(d) During cross-examination by an opposing licensee, the witness's own representative ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding.

(e) Between completion of cross-examination and commencement of a re-examination, a paralegal who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on re-examination.

(f) During cross-examination by the representative of a witness unsympathetic to the cross-examiner's cause, the paralegal may discuss the witness's evidence with the witness.

(g) During cross-examination by the representative of a witness who is sympathetic to that licensee's cause, any conversations ought to be restricted in the same way as communications during examination-in-chief of one's own witness.

(h) During re-examination of a witness called by an opposing licensee, if the witness is sympathetic to the paralegal's cause, the paralegal ought not to discuss the evidence to be given by that witness during re-examination. The paralegal may, however, properly discuss the evidence with a witness who is adverse in interest.

(2) With the consent of the opposing licensee or with leave of the tribunal, a paralegal may enter into discussions with a witness that might otherwise raise a question under this rule as to the propriety of the discussions.

(3) This rule applies, with necessary modifications, to examinations out of court.

4.04 THE PARALEGAL AS WITNESS

The Paralegal as Witness

4.04 (1) A paralegal who appears as advocate shall not testify or submit his or her 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]

4.05 DEALING WITH UNREPRESENTED PERSONS

Dealing with Unrepresented Persons

4.05 When a paralegal deals on a client's behalf with an unrepresented person, the paralegal shall,

(a) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the paralegal; and

(b) make clear to the unrepresented person that the paralegal is acting exclusively in the interests of the client and accordingly his or her comments may be partisan.

[Amended - October 2014]