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Practice Management Helpline Frequently Asked Questions

COVID-19 UPDATE: Lawyers or paralegals who have questions about how to comply with their professional obligations or navigate practice management issues in the context of COVID-19 should refer to the Law Society’s Frequently Asked Practice Management Questions regarding COVID-19.
The Practice Management Helpline (the “Helpline”) answers questions about the Rules of Professional Conduct (“Rules”), the Paralegal Rules of Conduct (“Paralegal Rules”), and other professionalism and practice management topics. Below you will find answers to some of the questions that lawyers and paralegals ask the Helpline most frequently. To discuss a specific professionalism or practice management question, please contact the Helpline. 
  • 1. What is the ethical duty of confidentiality and what are the exceptions? To whom do I owe this duty? When does it begin and how long does it last?
    • What?
      • What is the ethical duty of confidentiality?
        Subject to limited exceptions,  lawyers and paralegals are required to protect and hold in strict confidence all information concerning the business and affairs of a client that the lawyer or paralegal obtains during the professional relationship (Rules, s. 3.3; Paralegal Rules, s. 3.03; Paralegal Professional Conduct Guidelines (“Paralegal Guidelines”), Guideline 8).  This includes the fact that a lawyer or paralegal has been retained by a client.

        Confidentiality applies to all information (received orally or recorded in any form) that a lawyer or paralegal possesses about a client regardless of:
         
        • the source of the information
        • the relevance of the information to the matter for which the lawyer or paralegal was retained, or
        • whether the information is publically available or known to others.

        The scope of the duty of confidentiality is wider than the evidentiary rule of privilege.
        (Rules, r. 3.3-1[2]; Paralegal Guidelines, Guideline 8, s. 3).
         
      • What are the exceptions to confidentiality?
        Lawyers and paralegals are prohibited from disclosing confidential information unless:
         
        • Expressly or impliedly authorized by the client
        • Required by law or by order of a tribunal of competent jurisdiction to do so
        • Required to provide the information to the Law Society of Ontario, or
        • Otherwise permitted by the Rules or Paralegal Rules.

        Lawyers and paralegals must disclose confidential information when required by law, by an order of a tribunal of competent jurisdiction, or by the Law Society, but they must not disclose more information than is required.

        Lawyers and paralegals may, but are not required to, disclose confidential information to:
         
        • Prevent death or serious bodily harm
        • Defend against certain allegations or claims
        • Establish or collect their fees
        • Secure legal advice, or
        • Detect and resolve conflicts of interest.

        The requirements that must be satisfied for each of these exceptions are set out in section 3.3 of the Rules and section 3.03 of the Paralegal Rules.
    • Who?
      • To whom is confidentiality owed?
        Lawyers and paralegals owe a duty of confidentiality to every client, including clients of the firm for which the lawyer or paralegal is a partner or associate, irrespective of whether the lawyer or paralegal handles or works on the client’s matter (Rules, r. 3.3-1[3]; Paralegal Guidelines, Guideline 8, s. 8).

        The duty of confidentiality also extends to prospective clients – it applies regardless of whether the lawyer or paralegal agrees to represent the person or organization, or whether the lawyer or paralegal renders an account to them (Rules, r. 3.3-1[4]; Paralegal Guidelines, Guideline 8, s. 7;  Descôteaux et al. v. Mierzwinksi, [1982] 1 S.C.R. 860).
    • When?
      • When does the duty of confidentiality begin and how long does it last?
        The obligation to protect confidential client information is triggered as soon as a person or organization first contacts the lawyer or paralegal about the provision of legal services.

        The duty of confidentiality owed to clients (current, former, or prospective) continues indefinitely, even after:
         
        • the client’s matter is resolved,
        • the professional relationship with the client has ended (regardless of the reason), or
        • the client dies.

        (Rules, r. 3.3-1[3]; Paralegal Rules, r. 3.03(2); Paralegal Guidelines, Guideline 8, ss. 6 and 7).
         
  • 2. Am I in a conflict of interest on this file?
    Lawyers and paralegals have a duty to avoid conflicts of interest when practicing law or providing legal services to clients. Except as permitted under the Rules or Paralegal Rules, lawyers and paralegals must not act or continue to act for a client where there is a conflict of interest (Rules, r. 3.4-1; Paralegal Rules, r. 3.04).

    To assist in identifying whether a conflict of interest exists, lawyers and paralegals should review their obligations under s. 3.4 of the Rules and ss. 3.04 to 3.06 of the Paralegal Rules, and consult the Law Society’s Steps for Dealing with Conflicts of Interest Rules (for Lawyers or Paralegals).
     
  • 3. In a joint retainer, what do I do when one of my clients has asked me to withhold confidential information from the other client?
    A joint retainer is one in which a lawyer or paralegal agrees to advise or represent more than one client in a matter or transaction.

    In a joint retainer, no information received in connection with the matter can be treated as confidential as between the joint clients (Rules, r. 3.4-5; Paralegal Rules, r. 3.04(6)).  If one of the joint clients instructs you to withhold the information from the other joint client(s), you may be in a conflict of interest. The conflict arises because following the client’s instructions would result in a breach of your obligation under the Rules or Paralegal Rules to share information with all clients in the joint retainer. If the client persists in his/her instructions not to disclose the information to the other joint client(s), you would be required to withdraw from representing all clients (Rules, rr. 3.4-5(c), 3.7-7 and 3.7-9; Paralegal Rules, rr. 3.04(6)(c), 3.08(5) and (11)).

    Lawyers or paralegals contemplating accepting a joint retainer should consult the Law Society’s Steps for Dealing with the Joint Retainer Rules (for Lawyers and Paralegals).
     
  • 4. Can I withdraw from representing a client for non-payment of legal fees?
    • Requirements
      Except in quasi-criminal or criminal matters, when a client fails to provide a money retainer or to pay for legal fees and disbursements, a lawyer or paralegal may withdraw from representing the client if:
      • 1. The lawyer or paralegal has given the client reasonable notice of the outstanding monies or fees owing, and
        The notice should be in writing and should give the client enough advance warning that the client’s failure to remit funds within a reasonable and defined time will result in the lawyer or paralegal ending the retainer.
         
      • 2. Withdrawal will not result in serious prejudice to the client.
        Whether withdrawal seriously prejudices a client will depend on an assessment of all the relevant facts and circumstances. In cases where immediate withdrawal would cause serious prejudice to a client’s interests, the lawyer or paralegal must continue to act for the client competently and diligently even if the lawyer or paralegal is not being compensated for his/her time. Once the risk of serious prejudice has passed, if reasonable notice has been provided, the lawyer or paralegal may then consider withdrawing for non-payment of fees.

        (Rules, r. 3.7-3; Paralegal Rules, r. 3.08(6))
         
    • Direction of the Court or Tribunal
       It is important to note that withdrawal from representation for non-payment of fees is subject to the direction of the court or tribunal, where it applies (Rules, r. 3.7-3; Paralegal Rules, r. 3.08(6)). This means that the court or tribunal may exercise its discretion to refuse the lawyer or paralegal’s request if the court or tribunal determines that withdrawal would cause serious harm to the administration of justice (R. v. Cunningham, [2010] 1 S.C.R. 331, paras. 50-51)
    • Quasi-Criminal or Criminal Matters
      Lawyers and paralegals have different and additional obligations when withdrawing from representation for non-payment of fees in a quasi-criminal or criminal case.  For more information, lawyers and paralegals should review rr. 3.7-4 to 3.7-6 of the Rules, rr. 3.08 (7) to (9) of the Paralegal Rules, and ss. 13 to 16 of the Paralegal Guidelines, respectively.
  • 5. Do my advertising or marketing materials comply with my professional obligations?
    To determine compliance,
     
    • Lawyers should review their materials against Chapter 4 of the Rules
    • Paralegals should review their materials against
      • Rules 8.02 and 8.03 of the Paralegal Rules
      • Guideline 19 of the Paralegal Guidelines, and
      • Section 6 of By-Law 4.
    • Both lawyers and paralegals should also review their materials against section 20 of By-Law 15.

    This review should be completed before the materials are printed, posted to your social media platforms, or submitted for publication.

    To assist with compliance, you may wish to specifically consider whether you are engaging in the following practices in your advertising or marketing and, if so, whether your advertising or marketing aligns with the applicable rules, commentaries, and/or guidelines identified below.  If you would like to discuss the below standards and/or your advertising or marketing practices, please contact the Practice Management Helpline.  However, please note that neither the Helpline nor any other department of the Law Society will provide advanced rulings on the compliance of advertising or marketing materials with a lawyer or paralegal’s professional obligations.
     
  • 6. Where can I find information about client identification and verification?
    Lawyer and paralegal obligations in respect of identifying or verifying the identity of clients are set out in Part III of By-Law 7.1.

    The Law Society offers resources that explain the requirements and the processes that lawyers and paralegals must follow, along with a precedent attestation, agreement, and file forms.

    Overview of the Requirements


    Process Documents


    Precedents

  • 7. What do I need to know about travelling across borders with electronic devices?
    • The risk
      Ontario lawyers and paralegals travelling internationally with electronic devices (including smart phones, tablets, laptops, portable drives, and USBs) face increasing uncertainty about how these devices will be treated by Canadian Border Security Agency officers on return to Canada, by U.S. border agents, or by border agents in other international destinations. Licensees are not immune to search policies and processes that could result in the disclosure of their clients’ confidential information when crossing the border.
    • Duty of confidentiality
      The search of a licensee’s electronic device at the border that contains confidential client information engages the licensee’s duty of confidentiality. Licensees are required to hold in strict confidence all information concerning the business and affairs of their clients that is acquired in the course of the professional relationship, subject to limited exceptions (Rules, rr. 3.3-1 to 3.3-6; Paralegal Rules, rr. 3.03(1) to (6)).
    • How to reduce risk of a breach
      To assist the legal professions with proactively managing the risks of travelling internationally with electronic devices, the Federation of Law Societies of Canada has published Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know. The document provides background information about border searches, an overview of a lawyer and paralegal’s professional responsibilities in this context, and some suggestions on how to assess and mitigate risks associated with border searches.
    • What to do in the event of a breach
      In the case of a breach of client confidential information at the border or otherwise, lawyers are required to comply with section 7.8 of the Rules and paralegals with rules 3.02(21) and 8.04 of the Paralegal Rules on errors and omissions. Specifically, licensees must promptly inform the client of the confidentiality breach, recommend that the client obtain independent legal advice concerning any rights the client may have arising from the breach, and advise the client that the licensee may no longer be able to act for the client. Licensees are also required to report the breach to their insurers.
  • 8. Where can I find supports or resources for my substantive or procedural law question?
  • 9. Before making a decision about next steps with this professionalism issue, how can I ensure that I have covered off all bases?
    To assist lawyers and paralegals with taking a course of action that complies with their professional obligations, the Law Society has developed a Decision Making Checklist. The Checklist guides lawyers and paralegals through identifying issues; reviewing and applying standards; considering options; assessing risks; securing guidance and support; and documenting decision making.

    Lawyers or paralegals may wish to contact the Practice Management Helpline to discuss their decision making process in respect of a specific professionalism or practice management issue.
     
  • 10. I am a paralegal. Is this proceeding or activity within my permitted scope of practice?
    Section 6 of By-Law 4 authorizes paralegals to represent persons in certain proceedings and to engage in specific activities related to such proceedings. Proceedings and activities within paralegal scope of practice, and the practice areas, proceedings, and activities paralegals ask about most frequently are explained below.
     
    • Types of Proceedings
      For the purpose of a paralegal’s scope of practice, proceeding means proceeding or intended proceeding
       
      • in the Small Claims Court
      • in the Ontario Court of Justice under the Provincial Offences Act
      • in a summary conviction court under the Criminal Code (Canada) (“Code”) in respect of
        • an offence where as of September 18, 2019 an accused was permitted to appear or examine or cross-examine witnesses by agent. 
        • an offence under ss. 320.13(1) (dangerous operation), 320.16(1) (failure to stop after accident), 320.17 (flight from peace officer), or 320.18(1) (operation while prohibited) of the Code.
      • before administrative tribunals established under an Act of the Legislature of Ontario or under an Act of Parliament.
      • before a person dealing with a Statutory Accident Benefits Schedule (SABS) claim or a matter related to a SABS claim (excluding a claim of an individual who has or appears to have a catastrophic impairment within the meaning of the SABS), including mediation, evaluation, arbitration, or related proceedings under the Insurance Act.
    • Activities in Relation to these Proceedings
      A paralegal is permitted to engage in the following activities on behalf of clients in relation to a proceeding or intended proceeding described above:
       
      • Providing legal advice. Give legal advice concerning the client’s legal interests, rights, or responsibilities with respect to the proceeding or the client matter that is the subject matter of the proceeding.
      • Preparing documents. Select, draft, complete, or revise a document for use in the proceeding or a document  that affects a client’s legal interests, rights, or responsibilities with respect to the proceeding or the client matter that is the subject of a proceeding, or assist another to do any of these things.
      • Participating in negotiations. Negotiate a client’s legal interests, rights, or responsibilities that relate to the proceeding or the client matter that is the subject of the proceeding.
      • Engaging in other permissible activities. Anything mentioned in s. 1(7) of the Law Society Act (e.g., determining what documents to serve or file in relation to a proceeding), provided the activity is required by the rules of procedure governing the proceeding.
    • Matters before Administrative Tribunals
      As noted above under Types of Proceedings, By-Law 4 authorizes paralegals to represent clients before administrative tribunals established under an Act of the Legislature of Ontario or under an Act of Parliament. Examples of such administrative tribunals include:
       
      • Financial Services Tribunal
      • Immigration and Refugee Board
      • Workplace Safety and Insurance Board
      • Workplace Safety and Insurance Appeals Tribunal
      • Landlord and Tenant Board
      • Human Rights Tribunal of Ontario
      • Social Benefits Tribunal
      • Licence Appeal Tribunal
      • Assessment Review Board
      • Local Planning Appeal Tribunal (formerly known as the Ontario Municipal Board)
      • Ontario Labour Relations Board
      • Alcohol and Gaming Commission of Ontario
      • Agriculture, Food and Rural Affairs Appeal Tribunal
      • Health Professions Appeal and Review Board
      • Ontario Highway Transport Board, and
      • Ontario Parole Board.

      Note: This list of administrative tribunals is not exhaustive. For an administrative tribunal not listed above, paralegals should assess whether the tribunal was established under an Act of the Legislature of Ontario or under an Act of Parliament.
       
    • Immigration Law
      Paralegals are permitted to represent clients in a hearing before the Immigration and Refugee Board (IRB), and can provide legal services to clients for matters relating to an IRB hearing. 

      Completing application forms, drafting documents, or providing other legal services that are not related to an IRB hearing remain outside of a paralegal’s permitted scope of practice. For example, if a client requests assistance from a paralegal with completing a start-up visa application, the paralegal must decline to assist.
       
    • Criminal Law
      Information about the types of summary offences under the Code for which paralegals are permitted to represent clients can be found here.

      Note: Even though the Youth Criminal Justice Act (“YCJA”) applies the Code to youth criminal justice proceedings, paralegals are not permitted to represent clients in YCJA matters. See the YCJA Paralegal Licensing Process FAQ for more information on this prohibition.
       
    • Examples of Prohibited Proceedings and Activities
      Paralegals are prohibited from:
       
      • Handling family law matters
      • Representing clients in YJCA matters
      • Drafting wills
      • Conducting real estate transactions
      • Advising on corporate matters, and
      • Providing any other legal services that
        • are not related to a proceeding or intended proceeding identified under By-Law 4, or
        • only a lawyer can provide.

      Note: This list of prohibited proceedings and activities is not exhaustive. Paralegals should consult By-Law 4 when determining whether they are permitted to take on a client matter or perform a task in relation to a client matter.
       
Terms or Concepts Explained