Client Options: Range and Reality
A range of options
In helping clients deal with consumer and debt problems, here are some ways to categorize the client’s options.
1. Do nothing
In applying the law to a client’s problem, it may be that the client does not have to do anything right away (the “wait-and-see” approach), or that letting the matter go is the most realistic alternative.
A wait-and-see approach may be the most practical option in cases where a client is still hopeful the matter will be resolved without taking further steps — for example, when the likelihood of success in seeking a remedy (either in court or another forum) is in doubt. The client may find the cost of seeking a remedy too high. Many clients will say the emotional strain of pursuing a remedy is not worth what might be recovered.
2. Negotiate with the other side
Often, a matter can be resolved by negotiating directly with the other side. It may involve a phone call, a letter, or a face-to-face meeting. Your assistance may be important if a client is unable or reluctant to negotiate alone.
3. Use other individuals or agencies
There are many people other than advocates or lawyers who may be able to help resolve the problem. These include MPs, MLAs, government agencies (such as Consumer Protection BC), the Better Business Bureau, the media, professional or trade associations, and consumer groups.
4. Take non-legal, self-help steps
Sometimes a more creative approach can help solve a problem. Picketing the business in question may, at the very least, have a nuisance effect that puts pressure on the other side to settle. This option costs little in dollar terms, but if the results are not relatively quick, it may be difficult for the client to sustain the action.
Boycotts, in limited circumstances, may also be effective. Usually, boycotts involve several people who are aggrieved or who are at least willing to support one individual or cause.
5. Use legal action
A client may be able to seek a remedy in the court system. The advantages of going to court include using the court system to force a resolution. The disadvantages include the time it may take to resolve the matter, the uncertainty of success, and the likelihood that (if the client uses a lawyer) some or all of the legal costs will not be recovered.
A combination of approaches
Often, problem solving involves a combination of these alternatives at various stages. A client’s best plan is to start with an attempt to negotiate a resolution. If that fails, the client may want to take legal action. The client can still keep the negotiation option open during the legal process. Most legal cases settle before they go to trial.
A critical aspect of efficient problem solving is choosing the most appropriate remedy. Realism is key. Advocates need to be realistic about a client’s chances of success, about the amount that might be recovered, about the ability of any other service to resolve the problem, and about the client’s ability to carry out their role in the remedy (particularly if it is a self-help remedy).
Ethical and professional considerations
Under the Legal Profession Act, only lawyers and articled students licensed by the Law Society of British Columbia may practise law in BC. However, the Legal Profession Act defines “practice of law” as excluding the work of advocates, provided that the work is not performed for (or in the expectation of) a fee, gain, or reward (direct or indirect) from the client.
The Code of Professional Conduct for British Columbia, which explains the rules of conduct for lawyers in BC, sets out rules for “designated paralegals”. Chapter 6.1-3.1 of the Code exempts advocates funded and designated by the Law Foundation of BC from the rules and limitations regarding designated paralegals. A person employed by or volunteering with a non-profit organization providing free legal services can also apply to the Executive Committee of the Law Society of BC to be exempted from the rules and limitations regarding designated paralegals.
Nonetheless, advocates (and, of course, lawyers) should consider themselves bound by the ethical rules of conduct set by the Law Society of BC. These rules of conduct are explained in the Code of Professional Conduct for British Columbia.
Chapter 2 of the Code contains historic principles of lawyers’ ethics called the “Canons of Legal Ethics”. These are general principles, but they set an important tone for an advocate’s professional duties. Duties are owed to the state, the courts and tribunals, the client, other advocates, and oneself. In virtually any ethical situation, the canons provide relevant guidance for personal conduct.
The Law Society stresses that many complaints about lawyers can be avoided by good lawyer-client communications. The primary responsibility for communication rests with the lawyer, who should ensure that:
- clients are kept informed of the progress of their file,
- clients are adequately briefed on the various options available to resolve a problem, and
- clients’ inquiries are handled promptly and efficiently.
There are a range of techniques to properly communicate with clients, including returning phone calls promptly, sending copies of correspondence to clients, explaining legal concepts in simple terms, and giving realistic advice to clients.
Professional conduct rules
The following is a list of some of the more important rules that should be followed by everyone in the conduct of client files (all chapter references are to the Code of Professional Conduct for British Columbia).
Appearances before tribunals
Advocates are not permitted to represent clients in the superior courts of the province, but there may be limited instances when they can assist in the presentation of cases in the three divisions of the Provincial Court of British Columbia. The rules for appearances in other tribunals vary considerably.
The Code of Professional Conduct contains a section (chapter 3.3) on confidentiality. Among other things, it provides that a lawyer must hold in strict confidence and not divulge information concerning the affairs of a client, unless:
- authorized by the client to share the information,
- required by the law, a court or the Law Society to do so, or
- the rules of conduct otherwise permit the sharing of the information.
Conflicts of interest
The Code of Professional Conduct spells out (in chapter 3.4) a duty to avoid conflicts of interest. There are two main situations in which this rule applies:
- It applies most obviously where parties are directly opposed to each other in a matter. An advocate or different advocates within the same organization cannot act for opposing parties. In practice, it is important for advocates and their organizations to develop and to follow internal procedures that detect conflicts early on, and to follow procedures to refer one or more of the clients in conflict situations to outside representation.
- The rule may also apply where an advocate is asked to act for more than one party, even where it appears initially that the parties have all interests in common. For example, an advocate may be approached by two spouses being sued by a creditor. In general, it may be safe to act for both. However, be alert to the possibility of conflicts if there appear to be matrimonial problems between the spouses, or if one of the parties appears to be unreasonably influenced by the other. If conflicts do arise after an advocate agrees to act for two or more people, it generally means that the advocate must stop acting for any of the parties.
Contacting other parties or witnesses
Chapters 5 and 7 of the Code of Professional Conduct for British Columbia prohibit lawyers from being in direct contact with opposing parties or with witnesses represented by another lawyer, unless there is explicit permission to do so.
The Code requires lawyers who contact any unrepresented person to make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the lawyer’s client, and to urge the unrepresented person to obtain independent legal representation.
In general, lawyers can contact unrepresented witnesses. However, it is important to be clear about who you are representing.
There is a range of prohibitions against communicating in a threatening way. The Code of Professional Conduct for British Columbia has a number of general rules that call on lawyers to conduct themselves in a professional manner. Behaviour such as swearing at an opposing party or at that party’s lawyer is considered unprofessional. Threatening to report a lawyer to the Law Society, for some advantage, is also unprofessional.
Threatening to report the criminal conduct of an opposing party for purposes of achieving some gain is improper. A classic example of this is threatening to report someone to the police if that person does not make good on an NSF cheque.
The dishonest client
A dishonest client presents advocates with another ethical dilemma. You are entitled to begin by presuming that what a client tells you is truthful, though you may need to reconfirm those facts as other facts emerge.
If a client tells a lawyer that they intend to lie at a proceeding (such as a court or tribunal hearing), the lawyer must advise the client that the lawyer will withdraw from acting for the client if the client insists on not telling the truth (Code of Professional Conduct for British Columbia, chapter 3.7). If the lawyer does withdraw, they are not allowed to explain why to the court or tribunal. The reasons lawyers withdraw, and the process for withdrawing from acting for a client, are set out in chapter 3.7 of the Code.
In recent years, the Law Society has repeatedly warned lawyers against acting for clients when it appears the client’s motives are fraudulent. Examples include when a client wants to have assets transferred to another party (it may be a fraudulent conveyance) or give one creditor (such as a relative) a proportionally larger payment on a debt compared with other creditors (it may be a fraudulent preference).
Getting help with ethical issues
Aside from knowing and applying the basic rules of ethical conduct, a very important aspect of professionalism is knowing where and when to ask for help with an ethical issue. The Law Society of BC has recognized this and provides considerable resources, including written materials and staff, to answer ethical questions from lawyers. It is particularly important for advocates, when faced with an ethical issue, to contact a lawyer for advice if there is any doubt about how the matter should be handled.
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