Beyond zealous advocacy for his or her client, a lawyer’s duty extends beyond his or her duty to the client. In Ontario, a lawyer must adhere to the Rules of Professional Conduct, which proscribes and describes lawyers conduct. This includes a lawyer’s duty to the court.
Recently, in Blake v Blake, 2019 ONSC 4062, Regional Senior Justice Daley, commented on whether counsel breached his duty to the court by not advising the court of a case that he considered to be directly on point with the case before him. In this estates dispute, an estate trustee, in his personal capacity and in his capacity as estate trustee, brought a summary judgment motion to dismiss an application commenced by his siblings. The siblings were successful in defending against the summary judgment motion and sought their costs on the motion.
While the summary judgment decision was focused on the alleged misconduct of the estate trustee, the costs decision by Justice Daley focused on the conduct of his counsel. In his decision, Justice Daley noted the lack of authorities presented on one of the arguments presented on the summary judgment motion. While the decision was under reserve, Justice Daley came across a case he thought on point with the case at bar, a decision that had not been brought to the court’s attention by any of the lawyers representing the various parties. In reviewing the decision, he came across a blog post written by a partner of the estate trustee’s counsel discussing that case.
Because the blog was posted on the firm’s website, Justice Daley drew the inference that the decision was known to the estate trustee’s counsel at least by the time the blog was published, if not earlier. He found the decision was directly on point with one of the issues at stake on the summary judgment motion and inferred that the estate trustee’s counsel deliberately did not bring the decision to the court’s attention because it would have been adverse to the estate trustee’s interests. (Estate trustee’s counsel has filed a Notice of Appeal of both the merits and cost decision. In it, it is alleged that he had no notice the costs award would be based on the personal misconduct of counsel, neither misconduct or the case in question was argued by opposing counsel, and that the decision referred to by Justice Daley was irrelevant to the argument that he had advanced).
Justice Daley considered a lawyer’s duty to the court, referencing both the Rules of Professional Conduct and the Model Code of Professional Conduct from the Federation of Law Societies in Canada. Both rules discuss a lawyer’s obligation to the court including:
- When acting as an advocate, a lawyer must not: (i) deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by the other party (rule 5.1.-2);
- The lawyer should keep abreast of developments in all areas of law in which the lawyer practices (rule 3.1.-2, commentary 2);
- When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy ad respect (rule 5.1-1); and
- When acting as an advocate, a lawyer shall not…(e) knowingly attempt to deceive a tribunal or influence the course of justice by…misstating facts or law… (rule 5.1-2(e)).
At paragraph 30 of the decision, Justice Daley noted, “counsel before the courts have a positive duty to make full disclosure of all the binding authorities relevant to a case, including all authorities on point whether they support or undermine the position being urged upon the court, even if opposing counsel has not cited such authority.” He was clear to say that this duty should not be misconstrued as requiring the lawyer to present a disinterested account of the law. Lawyers are obliged to distinguish those authorities which do not support their client’s position thus, while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court.
Justice Daley noted two principles relating to a lawyer’s obligation to inform the court of relevant authorities:
- where lawyer knows of a relevant authority, the failure of the lawyer to inform the court of that authority could be seen as an attempt to mislead the court;
- where a lawyer does not know about authority, ignorance may nonetheless be no excuse. Lawyers have a duty to conduct reasonable research on points of law that are known in advance to be contentious.
Thus, while this may not amount to a deliberate misrepresentation, counsel nevertheless may be found to be in breach of their duty to the court for failing to have conducted reasonable research as to relevant authorities.
The penalty for a lawyer’s breach of their duty to the court may be reflected in the cost award (or, if a complaint is made, by professional discipline). In this case, Justice Daley, concluded that the estate trustee’s counsel breached his duty to the court, and the appropriate penalty was the award of substantial indemnity costs in favour of the successful party. He ordered the estate trustee to pay the cost awards personally, and not out of the assets of the estate.
This case reiterates the importance of a lawyer’s duty to the court. A lawyer has an ongoing obligation to the court to conduct reasonable research and advise the court of anything relevant. Failure to do so can have serious consequences. Among other important issues, the pending appeal raises the interesting question of whether a lawyer is entitled to notice of a court’s potential criticism of his or her conduct and whether the lawyer should be given an opportunity to respond.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.