Amendments to the Rules of Professional Conduct – Short-Term Pro Bono Services
This e-bulletin was issued by the Law Society of Upper Canada on Oct 25, 2016.
In September 2016, Convocation approved amendments to the Rules of Professional Conduct (the “Rules”) about conflicts of interest relevant to short-term pro bono legal services. A brief summary of the development of these rules and their features as amended are outlined below.
Development of the Rules regarding Short-Term Pro Bono Services
The Rules on this subject were first approved in 2010, and provided a modified conflict of interest standard for lawyers participating in Pro Bono Law Ontario (PBLO) court-based brief services program in the Superior Court of Justice or Small Claims Court by permitting a lawyer to provide brief services to a person in such programs unless the lawyer knew of a conflict of interest that would prevent him or her from acting. Since 2010, the range of programming offered by PBLO, now known as Pro Bono Ontario (PBO), has greatly expanded.
Features of the Rules, as Amended
Rules 3.4-16.2 to 188.8.131.52 and their commentaries now apply to a broader group of pro bono providers:
- “Pro bono lawyer” means “(i) a volunteer lawyer who provides short-term pro bono services to clients under the auspices of pro bono provider or (ii) a lawyer providing services under the auspices of a Pro bono Ontario program” [r. 3.4-16.2].
- “Pro bono provider” means “a pro bono or not-for-profit legal services provider that makes pro bono lawyers available to provide advice or representation to clients” [r. 3.4-16.2].
Conflict checks need not be performed in certain circumstances:
- A pro bono lawyer may provide short-term pro bono services without taking steps to determine whether there is a conflict of interest arising from duties owed to current or former clients of the lawyer’s firm or of the pro bono provider [r. 3.4-16.3].
- “Short-term pro bono services” means “pro bono legal advice or representation to a client under the auspices of a pro bono provider with the expectation by the pro bono lawyer and the client that the pro bono lawyer will not provide continuing legal advice or representation in the matter.”
- See also the definitions of “pro bono lawyer” and “pro bono provider” above.
A pro bono lawyer must take reasonable measures to ensure that no disclosure of the client’s confidential information is made to another lawyer in the lawyer’s firm [r. 3.4-16.4].
- “Lawyer’s firm” means “the law firm at which the pro bono lawyer practises law as a partner, associate, employee or otherwise” [r. 3.4-16.2].
- Appropriate screening measures must be in place to prevent disclosure of confidential information relating to the pro bono client or to other persons at the lawyer’s firm. Rule 3.4-16.4 extends, with necessary modifications, the rules and guidelines about conflicts arising from a lawyer transfer between law firms (rules 3.4-17 to 3.4-23) to the situation of a law firm acting against a current client of the firm in providing short-term legal services. For more information on appropriate screening measures, see r. 3.4-16.6, commentary .
Confidential information obtained by a pro bono lawyer representing a pro bono client will not be imputed to the lawyers, paralegals or others at the lawyer’s firm. Other lawyers and paralegals of the pro bono lawyer’s firm may continue to act for another client adverse in interest to the pro bono client and may act in future for another client adverse in interest to the pro bono client [r. 3.4-16.6, commentary ].
A pro bono lawyer must not provide or must cease providing short-term pro bono services to a client where the pro bono lawyer knows or becomes aware of a conflict of interest [r. 3.4-16.5].
Knowledge of a conflict of interest will not be imputed to the pro bono lawyer; the pro bono lawyer must have actual knowledge of a conflict: The pro bono lawyer is disqualified from acting for a client receiving short-term pro bono legal services only if the lawyer has actual knowledge of a conflict of interest in the same or a related matter. For example, a conflict of interest of which the lawyer has no actual knowledge, but which would ordinarily be imputed to the lawyer because of the lawyer’s membership in or association or employment with a firm would not preclude the pro bono lawyer from representing the client seeking short-term pro bono services [r. 3.4-16.6, commentary ].
Actual knowledge of a conflict of interest by the pro bono lawyer is based on reasonable recollection and information provided by the client in the ordinary course of the consulting with the pro bono provider regarding the short-term pro bono services [r. 3.4-16.6, commentary ].
A pro bono lawyer who is unable to provide short-term pro bono services to a client because there is a conflict of interest shall cease to provide such services as soon as the lawyer actually becomes aware of the conflict of interest [r. 3.4-16.6].
The pro bono lawyer must not seek the pro bono client’s waiver of the conflict [r. 3.4-16.6 and commentary ].
A conflict of interest of one pro bono lawyer is not imputed to other lawyers participating in the program: The disqualification of a lawyer participating in a short-term pro bono services program does not create a conflict for the other lawyers participating in the program, as the conflict is not imputed to them [r. 3.4-16.6].
If the pro bono lawyer and the pro bono client agree that the resources of the lawyer’s firm, including other lawyers, may be accessed for the benefit of the client, the provisions of rules 3.4-16.3 and 3.4-16.4 do not apply. In such a case, the pro bono lawyer would be required to clear conflicts and the client would be considered a client of the lawyer’s firm [r. 3.4-16.6, commentary ].