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Civil and commercial litigation

We here at Alepin Gauthier, like all other lawyers, are professionals. We are subject to the laws of Quebec, the rules and regulations of the Quebec Bar and our Code of Professional Conduct. We provide services in exchange for the payment of our fees. In that sense, lawyers are similar to many other professionals, service providers or sellers of merchandise.

However, because of the rules under which lawyers must operate, we must put priority, not upon our own interests, but upon the interests of others, our clients. Article 23 of the Code of Professional Conduct provides: « A lawyer must act at all times in the best interests of the client, in compliance with the rules of law and in such a manner as to establish and maintain a relationship of mutual trust. »

The meaning of that article is worked out in each situation on a daily basis in how we serve our clients. As always, the devil is in the details.

One of the first things that it means is that a lawyer’s opinion and advice must always put the interests of the client ahead of his own interests. So, for example, a lawyer, in good conscience and according to the rules, cannot advise his client to undertake lengthy litigation to pursue a bad case with a poor chance of being successful, in order to advance his own interests, which is to say, to collect lucrative fees from the pursuit of the case. It may very well be that a client will, in full knowledge of the facts and of the poor chances of success, nevertheless decide to go ahead with a lawsuit. The lawyer who represents a client in such circumstances will be fully justified in continuing to represent him even after having advised the client of the poor chances of success. The key, however, is that the lawyer has been transparent in advising his client of his opinion of the strength of his case and his evaluation of the chances of success. The final choice remains that of the client. By being transparent in this manner and advising the client in that way, and as well as being transparent in the nature of the fees that are to be billed and giving to the client a fair and accurate assessment of the amount to eventually be billed for the carrying out of the litigation, the lawyer has properly put the interests of the client first ahead of his own as well also respecting his obligations to himself, his employers, his partners, and his employees to earn a fair return in exchange for the legal services to be rendered.

A lawyer, however, is not obliged to carry out everything his client requests of him. It should go without saying a lawyer cannot carry out illegal acts at the request of his client. It should also be understood that there is a difference between pursuing a lawsuit with a poor chance of success (not a zero chance of success), as opposed to carrying out a lawsuit or other procedures which might be abusive or improper. Article 41 of the Code of Professional Conduct provides: « A lawyer must try to dissuade a client from exercising a recourse or filing proceedings that the lawyer considers abusive and must inform him of the possible consequences. If the client persists, the lawyer must refuse to act for him in such recourse or proceedings. »

Article 41 refers to proceedings that are “abusive”. When the lawyer, in coming to such a conclusion, refuses to act for the client in such a proceeding, he is in fact acting in the client’s interests. This is true not only because he will not participate in futile actions, but as well, by informing the client of the possible consequences and more specifically the possibility that he could be ordered to pay the lawyer’s fees of the other party, he may very well prevent the client from doing something completely against his own interests.

Another important way in which the lawyer acts for the interests of his client, is within the duty of confidentiality. Article 60 of the Code of Professional Conduct provides: « A lawyer must ensure the confidentiality of all information concerning the affairs and activities of a client of which the lawyer becomes aware in the course of the professional relationship. »

Article 61 of the Code of Professional Conduct provides: « A lawyer must take reasonable measures to ensure that every person who collaborates with him when he engages in his professional activities and, where applicable, the firm within which he engages in such activities, protects confidential information. Similarly, when the lawyer engages in his professional activities within an organization, he must take reasonable measures to ensure that the organization provides him with the necessary means to protect confidential information. »

A lawyer has not only the ability but the duty to not share confidential information with other parties, unless the law specifically obliges or authorizes him to do so or his client gives his express or implied authorization to do so.

The law provides a number of exceptions to this duty, for example, if a lawyer is obliged to pursue his client for unpaid fees, or to prevent acts of violence, including suicide, if the lawyer believes that there is imminent danger of death or injury to another person.

In general, however, the guarding of information as confidential is to be done in the client’s interests. The obligation is on the lawyer. No client, of any nature whatsoever, is obliged to keep confidential information or opinions communicated by or to his lawyer. In other words, the client always has the option of revealing discussions and confidential information communicated with and to his lawyer. The duty of confidentiality is in principle designed to benefit the client, not the lawyer.

The reader may ask himself: « What if the lawyer is not being paid? Does he still have to work for the client? » The answer, generally speaking, is no. The law does permit explicitly that services can be withdrawn from a client who is not paying. However, the withdrawal of services must be done in such a manner as not to compromise the client’s interests. Article 48 of the Code of Professional Conduct provides: « Unless it is at an inopportune time, a lawyer may, for serious reasons, cease acting for a client.

The following, in particular, constitute serious reasons:

(3) when the client, after reasonable notice, refuses to pay disbursements and fees to the lawyer or a provision therefor; (…) »

So, for example, when a lawsuit has been commenced, but no trial date has been set, if a lawyer comes to the conclusion that he must cease representing the client, he must send a notice to him, as well as to the other parties in the lawsuit. The notice will inform the client that he may object to the lawyer’s withdrawal, and thereby force the lawyer to go before the Court to authorize the withdrawal. If there is no opposition to the withdrawal, then the lawyer ceases to represent the client and to the client will then receive a notice to appoint a new attorney. These rules accomplish the dual goal of permitting the lawyer to withdraw from a case for a serious reason, as well as allowing the client to find new representation so that his lawsuit is not compromised.

The rules are a little different if the date of the trial has already been set. In such case, the lawyer who wishes to withdraw must ask the authorization of the Court. Generally speaking, if the reason (including non-payment of the fees) is serious, and there is enough time before the trial for the client to hire and instruct a new lawyer to represent him at the trial, then the Court will allow the lawyer to withdraw. However, because the authorization of the Court is required, it can and it has happened that lawyers have not been allowed to withdraw, despite, for example, not being paid. The Court will always put the interests of the client in this situation above that of the lawyer so that, in certain circumstances, the lawyer may not be allowed to withdraw if to do so causes the client a serious prejudice.

We can therefore come to the conclusion that lawyers are professionals, service providers and entrepreneurs. But their first duty is always to their clients. That does not authorize them to break the law or defy the courts or show contempt for judges. But within the limits of the law and the obligations they have as professionals, their first duty is to the interests of the client. Yes, they are allowed and expected to earn fees for their law firm so that they, their partners, their employers and the other employees can earn a living. But they are not allowed to do so at the expense or to the detriment of the interests of their clients.

Franco Tamburro, Attorney-at-Law

Alepin Gauthier Avocats Inc.

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