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February 8, 2010

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Law Times • February 8/15, 2010 NEWS PAGE 5 LSUC relaxes rules for lawyers working for free BY TIM SHUFELT Law Times services, will soon include an exemption for lawyers off ering court-based brief services. Th e Law Society of Upper C Canada is amending its rules of professional conduct to fa- cilitate Pro Bono Law Ontario's legal outreach programs. Th e law society's current standards for confl icting inter- ests are too rigid to allow for the kinds of limited retainers used by PBLO programs, Bencher Julian Porter said at Convoca- tion late last month. "So the system which is meant to help people that couldn't get legal service oth- erwise, who were not eligible for legal aid, that were in trou- ble with the system, can't be helped," Porter said. A simple relaxing of the rules, he added, would im- prove access to justice for a de- mographic with few choices for representation, he explained. "It's a way of making this important outreach capacity work," Porter said. Among PBLO's advocacy projects is Law Help Ontario, which operates two legal clin- ics in Toronto, one for Supe- rior Court matters and one for Small Claims Court. Volunteer lawyers off er short-term legal advice to those whose income is greater than onfl ict of interest rules, which were blamed for stifl ing pro bono the threshold for qualifying for legal aid but who can't aff ord to pay for representa- tion themselves. However, before a volun- teer lawyer can off er help, the matter must fi rst clear a confl icts check, a rule that unduly delays court-based services, Porter said. Th e centres are typically staff ed by students from large law fi rms in Toronto, he explained. "By the time it is checked back at the offi ce to see if there's a confl ict of inter- est, at least three hours has passed, sometimes more." Th ose regulations are pre- venting lawyers from partici- pating in the program, ac- cording to PBLO. Pro bono counsel turn away a "con- siderable number of clients," according to a law society report. Under the new system, law- yers will be able to off er pro bono services unless they know of a specifi c confl ict that ex- ists. "Of course, as soon as the person discovers there is a confl ict, that's the end of that and the law fi rm is always set up with agreement to have in- formation sheltered from the other side," Porter said. Law societies in British Co- lumbia and Alberta have made similar amendments in which a pro bono lawyer's associates and partners in a fi rm may continue to act for clients with Pro bono lawyers should be able to provide assistance on a limited retain- er basis without undergoing oner- ous conflicts checks, says Malcolm Mercer. adverse interests to the short- term client. Confl ict of interest rules that cast a wide net are leading other bar organizations across Canada to reconsider their reg- ulatory framework. "It's been a topic of impor- tance going back now seven or eight years," says Malcolm Mercer, general counsel at Mc- Carthy Tétrault LLP. "Confl icts are such a practical day-to-day issue." Mercer was a member of the Canadian Bar Associa- tion's task force on confl icts of interest, which made sev- eral recommendations last year for lawyers facing increasingly complex situations. Th e CBA recently incorpo- rated those recommenda- tions into its code of con- duct, making major revisions to its confl ict of interest guidelines. Among the most impor- tant changes is the very defi - nition of what constitutes a true confl ict, Mercer says. For a confl ict to exist, there must be a "substantial risk of material or adverse eff ect on representation of a client," according to the CBA code. Th at compares with the "likely" prospect of an adverse eff ect, as defi ned in the LSUC's rules of pro- fessional conduct. Th e new language is consistent with that of the Supreme Court of Canada in R. v. Neil and Strother v. 3464920 Canada Inc., Mer- cer says. Th e CBA also formalized the notion that there exists a relationship of trust between clients and lawyers, which can be breached by the mere pres- ence of an adverse relationship even when no confl ict exists. "Th ere may be times when just being adverse to the client may compromise the relation- ship," Mercer says. He cites the example of a lawyer fi ghting for compensa- tion for an injured worker. A confl ict of interest may exist if that same lawyer also acts on behalf of a bank in foreclosure proceedings on the worker's home. "You could easily imagine the injured worker simply couldn't trust the lawyer," he says. But he adds that acting on a matter that is adverse to an- other client shouldn't neces- sarily amount to a confl ict if the matters are unrelated and no signifi cant risk of a nega- tive eff ect on representation exists. Also underlying the CBA's new confl ict standards is the promotion of access to justice, Mercer says, noting that pro bono lawyers should be allowed to provide assistance on a lim- ited retainer basis. "If you had to go through that process, you'd spend more time clearing confl icts than of- fering help." Current rules can also put up signifi cant barriers to rep- resentation in specifi c practice areas or in remote regions of the country where fi nding a lawyer free of any potential confl ict as defi ned can be im- practical or impossible, Mer- cer says. "When there's no real risk of prejudice, the CBA responds, 'Why should it be prohibit- ed?'" he notes. Uniformity of codes of con- duct across Canada is the ulti- mate goal, Mercer says, adding the hope is that law societies will adopt the CBA's guide- lines. 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