Ethics Chapter 2 PDF

Professionalism 2 Introduction.............................. 30 Learning Outcomes Interpretation of the Rules...

Professionalism 2 Introduction.............................. 30 Learning Outcomes Interpretation of the Rules of Paralegal After reading this chapter, you will understand: Conduct (Rule 1.02).................... 31 How to read the Paralegal Rules of Conduct. Professionalism (Rule 2; Guidelines 1-4)...... 33 How to use the Paralegal Professional Conduct General................................. 33 Guidelines. Integrity and Civility....................... 33 The general duty of integrity and civility. Outside Interests and Public Office Management of outside interests and public office. (Rules 2.01(4), (5); Guideline 2).......... 45 The role of the paralegal as mediator. Acting as a Mediator (Rule 2.01(6); The obligation to fulfill undertakings. Guideline 2)......................... 46 Harassment and discrimination. Undertakings and Trust Conditions The role of the Discrimination and Harassment (Rules 2.02, 6.01; Guideline 3).......... 47 Counsel. Professional Conduct and the Ontario Human Rights Code.................... 51 Harassment and Discrimination (Rule 2.03; Guideline 4)................ 51 Chapter Summary......................... 59 Key Terms................................ 60 Application Questions..................... 60 29 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  PLANNING FOR PRACTICE Professionalism Several months have passed and Rajni is now a P1 licen- get stuff done around here if this one got organized,” see. She has recently been hired by Price and Associates, signalling toward Christina. He then goes back to his a full-service paralegal firm in her hometown. The firm office, checks his own file trays and finds the file under consists of Lana Price, who started the firm five years some papers on his desk. He yells out to Christina, “It’s ago, Luis Perez, and Sebastian Merton. There are three okay, I found it where you buried it.” Sebastian calls assistants, a receptionist, and a bookkeeper. Rajni into his office. He has been so busy, he hasn’t had On her second day, Rajni is invited to sit in on a time to review the file. He quickly goes through it, mak- meeting with one of Sebastian’s clients. Sebastian has ing notes, and hands it to Rajni saying, “You should been in court all morning and is running late. Sebas- have reviewed the file before this meeting. Now we’re tian’s assistant, Christina, has apologized to the client unprepared.” for the long wait, which is now approaching one hour. Later that day, Rajni finds Christina in the restroom, When Sebastian finally arrives at the office, the client crying. When she asks her if she’s all right, Christina file is not on his desk. sobs, “I don’t know what to do. Every day he makes He goes back out to Christina’s desk and says, comments about how slowly I move. If I make the tiniest “Where’s the file?” Christina gives him a panicky look mistake, he suggests it’s because of my condition. It’s so and says, “The file? I don’t think I’ve seen it.” Christina humiliating, but I can’t say anything. He’s dying to find rises from her chair slowly. She was in a car accident a reason to get rid of me.” three years ago that resulted in severe injuries to her Questions for Discussion neck, lower back, and right leg. As a result, she stands and walks slowly. She requires a special office chair to 1. Has Sebastian complied with the Paralegal support her back, and she uses a software program that Rules of Conduct?1 When answering this allows her to dictate documents instead of typing them. question, consider Sebastian’s conduct toward As Christina moves toward the filing cabinet, Sebastian Christina and Rajni. sighs heavily and storms over, cutting her off and mut- 2. Did Sebastian breach Rule 2.03 when making tering, “My 85-year-old grandmother moves faster.” comments about Christina’s mobility? Rajni is shocked. Christina’s face flushes and she 3. Did Sebastian breach Rule 2.01 by being late makes her way back to her desk to continue searching. for the client appointment? The file is not anywhere to be found. Sebastian smiles apologetically at the client and says, “I might be able to Introduction The Paralegal Rules of Conduct (“the Rules”),2 which establish standards of profes- sional conduct for paralegals in Ontario, were approved by Convocation on March 29, 2007. Since then, the Rules have been amended many times, most extensively in 2014, and more recently as part of an ongoing initiative by all law societies across 1 Law Society of Ontario, Paralegal Rules of Conduct (1 October 2014; amendments current to 24 October 2019), online: [Rules]. 2 Ibid. 30 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Canada to bring their rules of conduct into conformity with the Federation of Law Societies of Canada Model Code of Professional Conduct.3 As a paralegal, you shall know the Rules and shall comply with the Rules. Non-­ compliance may result in disciplinary action by the Law Society. More importantly, unprofessional conduct may bring the reputation of the paralegal profession in Ontario into disrepute. Interpretation of the Rules of Paralegal Conduct (Rule 1.02) When reading and interpreting the Rules, you shall refer to the definitions set out in Rule 1.02. The definitions tell you what certain terms mean in the context of the Rules and of professional practice. Some terms (such as “client” or “consent”) may have different meanings in other contexts. However, for the purposes of compliance with the Rules, your starting point is the definition of the term set out in Rule 1.02. If you are trying to determine whether a paralegal – client relationship exists between a person and you, your starting point is the definition of “client” in Rule 1.02. If you are considering whether you are in a position of conflict of interest, your starting point is the definition of “conflict of interest” in Rule 1.02. If you are seeking a client’s consent to a certain arrangement, you shall consult Rule 1.02 first to ensure that the consent given is valid for purposes of the Rules. The Rules should be read and interpreted in conjunction with the Paralegal Profes- sional Conduct Guidelines (“the Guidelines”).4 See the Introduction to the Guidelines at paragraph 2: The Paralegal Professional Conduct Guidelines (“Guidelines”) have been created to assist paralegals with the interpretation and application of the Paralegal Rules of Conduct [“Rules”]. The Guidelines should be considered along with the Rules, the [Law Society Act (the “Act”)], the By-Laws made under the Act and any other relevant case law or legislation. Neither the Rules nor the Guidelines can cover every situation; they should be interpreted and applied with common sense and in a manner consistent with the public interest and the integrity of the profession. It is expected that a paralegal will exercise his or her professional judgment in interpreting the Guidelines, keeping in mind the paralegal’s obligations to the client, the court or tribunal and the Law Society. When interpreting the Guidelines, keep the following principles from the Introduc- tion to the Guidelines in mind: 5. The following may be of assistance in interpreting the Guidelines: The terms “shall” or “must” are used in those instances where compliance is mandated by either the By-Laws made pursuant to the Act or the Rules. 3 Federation of Law Societies of Canada, Model Code of Professional Conduct (14 March 2017), online:. 4 Law Society of Ontario, Paralegal Professional Conduct Guidelines (1 October 2014; amendments current to 24 May 2018), online: [Guidelines]. CHAPTER 2 Professionalism  31 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  The term “should” and the phrase “should consider” indicate a recommendation. These terms refer to those practices or policies that are considered by the Law Society to be a reasonable goal for maintaining or enhancing professional conduct. The term “may” and the phrase “may consider” convey discretion. After considering suggested policies or procedures preceded by “may” or “may consider,” a paralegal has discretion whether or not to follow the suggestions, depending upon the paralegal’s particular circumstances, areas of professional business or clientele, or the circumstances of a particular client or matter. When assessing a situation in which ethical or professional issues arise, consider taking the following steps: 1. Identify the ethical or professional issue or issues. 2. Consider any law that may apply, including but not limited to the Law Society Act,5 the By-Laws,6 and/or tribunal decisions such as Law Society discipline decisions. 3. Review the applicable rule(s) and guideline(s). 4. Assess the fact situation with reference to the applicable rule(s) and guideline(s). 5. Determine what action is necessary in order to comply with both the spirit and the letter of the Rules. Observing the Rules in both the “spirit” and the “letter” means conducting yourself in a manner that complies both with the intent or purpose of the Rules and with the words on the page. 6. Consider whether the action required by the rule is mandatory (you “shall” or “must” follow a particular course of action), recommended (you “should” follow or “should consider” following a particular course of action), or discretionary (you “may” follow or “may consider” following a particular course of action). 7. Be circumspect if you are in a “grey area”—that is, a situation where there is no clear language in the Rules, the Guidelines, or other resources directing you toward a particular course of action. 8. If, after the above steps, you are still unsure about what action to take, consult with another paralegal or a lawyer to secure legal advice about your proposed conduct,7 check the Resources for Paralegals at the Law Society website if you have not already done so, and/or contact the Practice Management Helpline for assistance. 9. Keep a written record of your analysis and any steps you took to deal with the situation. 5 RSO 1990, c L.8. 6 Law Society of Ontario, By-Laws (1 May 2007), as amended, online: [By-Laws]. 7 See Rule 3.03(8). 32 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Professionalism (Rule 2; Guidelines 1-4) General With respect to professionalism generally, Guideline 1 comments: 1.  A paralegal should inspire the respect, confidence and trust of clients and the community. 2.  Public confidence in the administration of justice and in the paralegal profession may be eroded by a paralegal’s unprofessional conduct. A paralegal’s conduct should reflect favourably on the legal professions, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety. 3.  A paralegal has special responsibilities by virtue of the privileges afforded the paralegal profession and the important role it plays in a free and democratic society and in the administration of justice. This includes a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals and to respect human rights laws in force in Ontario. Integrity and Civility Integrity (Rules 2.01(1), (2)) A paralegal has the following duties: (1) [T]o provide legal services and discharge all responsibilities to clients, tribunals, the public and other members of the legal professions honourably and with integrity. (2) [T]o uphold the standards and reputation of the paralegal profession and to assist in the advancement of its goals, organizations and institutions.8 Guideline 1 comments: 4.  Acting with integrity means that a paralegal will be honest and will act with acting with integrity high ethical and moral principles. Integrity is the fundamental quality of any being honest and acting person who seeks to provide legal services. If integrity is lacking, the paralegal’s with high ethical and moral usefulness to the client and reputation within the profession will be destroyed principles regardless of how competent the paralegal may be. Civility (Rule 2.01(3)) Rule 2.01(3) requires that a paralegal shall be courteous and civil, and shall act in good faith with all persons with whom the paralegal has dealings in the course of her or his practice. Guideline 1 comments: 5.  Acting with civility means that a paralegal will communicate politely and acting with civility respectfully and act in a manner that does not cause unnecessary difficulty or harm being polite, respectful, and to another. considerate of others 8 Rules 2.01(1), (2). CHAPTER 2 Professionalism  33 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  BOX 2.1 INTEGRITY Fact Situation You are a paralegal licensee. One of your clients is the defendant in a Small Claims Court proceeding. On the morning of the date set for trial you are waiting at the courthouse for your client when she phones to tell you that something urgent has come up and she cannot attend at court that day. You advise your client that in the circumstances the judge may order that the trial proceed in her absence or, if the judge grants an adjournment, she may be required to pay costs to the plaintiff, who is also represented, for inconvenience and delay. “Oh, just tell the judge that the baby’s got colic and I can’t get a sitter. That’ll break his heart,” your client says, and terminates the call. You happen to know that she has no children. Question for Discussion Can you follow your client’s instructions? 6.  The obligation to show courtesy and good faith extends to clients, opposing parties, other paralegals and lawyers, support staff, adjudicators, court and tribunal officers and staff and representatives of the Law Society. This obligation applies regardless of where the paralegal may be appearing or at what stage of the process the matter may be. acting in good faith Acting in good faith means making legitimate and honest efforts to meet your making legitimate and honest obligations in a given situation, without trying to mislead other persons or parties or efforts to meet your obligations attempting to gain an unfair advantage over others, through legal technicalities or in a given situation, without otherwise. trying to gain an unfair Paralegals shall make their legal services available to the public in a way that com- advantage over or mislead mands respect and confidence, and is compatible with the integrity and independence other persons or parties of the paralegal profession. through legal technicalities or otherwise BOX 2.2 COURTESY, CIVILITY, AND GOOD FAITH: THE LAW SOCIETY OF UPPER CANADA V GROIA Incivility can occur at any level of court or tribunal. This case is included because it deals with interesting issues around courtesy, civility, and good faith, and the factors a tribunal will consider when making a determination of incivility. Background: The Felderhof Trial Joseph Groia represented John Felderhof, former vice-president of Bre-X Minerals, in a fraud prosecution commenced in 1999 in the Ontario Court of Justice by the Secu- rities Commission of Ontario. Mr Felderhof was charged with insider trading and 34 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  misleading statements in the affairs of Bre-X Minerals Ltd contrary to the Ontario Securities Act.9 The trial began before Justice Peter Hryn in late 2000.10 Relations between Mr Groia and the Ontario Securities Commission prosecutors deteriorated rapidly. At issue were the role of the prosecutor and the production of documents. In 2002,11 the prosecution made an application in the Superior Court of Justice for removal of Hryn J (who had by that time presided over the trial for 70 days) on grounds that he had lost jurisdiction. One of the allegations made by the prosecution in support of the application was that Hryn J had wrongly failed to restrain uncivil conduct by Mr Groia, thus producing an unfair trial and creating an apprehension of bias on the part of the judge.12 In the discussion below, Mr Naster is one of the Ontario Securi- ties Commission prosecutors. NOTE TO STUDENTS: When reviewing the material below, keep in mind that the only issue before Campbell J (Superior Court of Justice) and Carthy, Doherty, and Rosenberg JJA (Ontario Court of Appeal) was whether, by reason of Hryn J’s conduct of the Felderhof trial (including but not limited to his alleged failure to interfere with Mr Groia’s trial tactics), he made a number of serious errors that deprived him of jurisdiction to proceed and undermined the applicant’s right to a fair trial. In his exhaustive 2002 review of the events giving rise to the application, ­Campbell J of the Superior Court of Justice notes: Some of the trouble in this case flows from Mr. Groia’s failure to understand the proper role of a prosecutor. Mr. Groia, in his unrestrained attacks on Mr. Naster’s professional integrity said over and over again that it is improper for the prosecutor to seek a conviction. That statement, standing alone, is inaccurate. The classic words of Mr. Justice Rand, that “the purpose of a criminal prosecution is not to obtain a conviction” must be read in the context of the passage in which they appear. The context makes it clear that the mischief is not to seek a conviction but to do so unfairly. It is improper for Crown counsel to seek a conviction in the sense of seeking a conviction at all costs, or breaching the quasi-judicial duty of fairness and evenhandedness. This principle is sometimes expressed by saying that it is not the function of the prosecutor “simply” to seek a conviction, because his or her quasi judicial duties involve much more than simply seeking a conviction. In this expression of the principle everything turns on the qualification “simply,” because it is appropriate for a Crown prosecutor to seek a conviction so long as he or she does not seek it unfairly or at all costs. Far from it being improper to Crown counsel to seek a conviction, it is appropriate for a prosecutor to seek a conviction as an aspect of seeking 9 RSO 1990, c S.5. 10 R v Felderhof, 2007 ONCJ 345, OJ No 2974 (QL). 11 R v Felderhof, 2002 CanLII 41888 (Ont Sup Ct J). 12 Ibid at para 5, point 4. CHAPTER 2 Professionalism  35 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  justice in the public interest. As the Honourable Michel Proulx J.A. and David Layton say in Ethics and Canadian Law: A prosecutor can seek a conviction but must all the while strive to ensure that the defendant has a fair trial. In acting as an advocate, the prosecutor is not to seek to convict but rather must see that justice is done through a fair trial upon the merits, and must act fairly and dispassionately. The duty of the Crown to act fairly does not preclude the use of a trial strat- egy aimed at securing a conviction, so long as the strategy does not result in unfairness to the accused. … Those passages make it clear that although the prosecutor may not act unfairly, it is appropriate for the prosecutor to seek a conviction. As one Crown counsel noted: … counsel for the Crown are expected to be strong and persuasive public advocates who fully and effectively represent the interests of the Attorney General in an adversarial process … Crown counsel must be skilled and diligent advocates, and must be permitted to vigorously pursue a legitimate result to the best of their abilities. For the above reasons it is inaccurate to say that a prosecutor should not seek a conviction and it is unfair to criticize a prosecutor for doing so. Yet Mr. Groia did so, repeatedly and vehemently.13 Having analyzed the issues and the law, Campbell J dismissed the Securities Com- mission’s application. He declined to award costs to Mr Felderhof, the successful party. The Securities Commission appealed the decision to the Ontario Court of Appeal. Mr Felderhof cross-appealed Campbell J’s costs award. When considering the grounds for the appeal in 2003, Rosenberg JA for the Ontario Court of Appeal14 commented: … The prosecution alleges that the trial judge made a number of serious errors that have deprived him of jurisdiction to proceed and undermined the appellant’s right to a fair trial. Fundamental to its position is the allegation that the trial judge has failed in his duty to curb the uncivil conduct of the respondent’s counsel. … A singular problem with the documents is that defence counsel seemed to misunderstand the difference between documents that were to be part of the prosecution case and documents that the prosecutor was required to disclose to the defence. Some statements made by one of the prosecuting counsel prior to the trial, on December 22, 1999 in the course of 13 Supra note 11, at paras 20-25. 14 R v Felderhof, 2003 CanLII 37346 (Ont CA). 36 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  an earlier disclosure motion, may have exacerbated this misunderstanding. At that time, prosecution counsel told the trial judge that part of his obligation as a prosecutor was “to ensure that all relevant materials are placed before you.” The defence developed the theme from this comment that whenever the prosecution failed to introduce a document that the defence thought was relevant and helpful to the defence, the prosecution was in breach of its duty and that this breach of duty could potentially lead to a stay of the charges for abuse of process. The defence also seemed to think that any document in the disclosure briefs could be admitted into evidence as a kind of abuse of process exception to the hearsay rule. This led to the defence presenting a prosecution witness with many documents about which he had no knowledge and which were not admissible through his testimony. The proceedings were thereafter peppered with allegations of prosecutorial misconduct. In his reasons, the application judge [Campbell J] has set out many examples of Mr. Groia’s conduct in the trial. The application judge described this conduct in some of the following ways: — “unrestrained invective” (at para. 34). — “excessive rhetoric” (at para. 34). — “The tone of Mr. Groia’s submissions … descended from legal argument to irony to sarcasm to petulant invective” (at para. 64). — “Mr. Groia’s theatrical excess reached new heights on day 58” (at para. 89). — “Mr. Groia’s conduct on this occasion more resembles guerilla theatre than advocacy in court” (at para. 91). — “unrestrained repetition of … sarcastic attacks” (at para. 271). — “Mr. Groia’s defence consists largely of attacks on the prosecution, includ- ing attacks on the prosecutor’s integrity” (at para. 272). As the application judge noted, the problem was not simply with Mr. Groia’s conduct. His rhetoric was, in many cases, tied to a view about what constitutes improper prosecutorial conduct that was simply wrong. As the application judge pointed out (at para. 29), there is nothing wrong with a prosecutor seeking a conviction, yet “Mr. Groia constantly accused the prosecution of impropriety in doing the very thing it has the right to do.”15 The Ontario Securities Commission’s appeal was dismissed by the Court of Appeal. The court rejected Mr Felderhof’s cross-claim for costs at the application stage. In its reasons, the court noted: … There were compelling reasons why a costs order against the prosecution would not be just and reasonable in this case. This application and appeal were brought because of the respondent’s counsel’s inappropriate behaviour during the trial. … The application judge gave full and careful reasons, which can be found at [R v Felderhof, 2003 CanLII 15 Ibid at paras 1, 7, 78-79. CHAPTER 2 Professionalism  37 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  41569 (Ont Sup Ct J), Campbell J]. I agree entirely with those reasons and in particular the following comments, at paras. 18 and 21: It was unnecessary on the application to pass judgment on [Mr Groia’s] litigation style because it did not affect the jurisdiction of the trial judge. … On this costs motion, however, the nature and impact of his conduct must be considered to the extent that it triggered the application. Mr. Groia’s conduct on significant occasions during the trial … was appallingly unrestrained and on occasion unprofessional. In light of this conduct the prosecutor’s applica- tion, although unsuccessful, was reasonable. Even with the problems in the conduct of the prosecution it seems unlikely this application would have been brought but for Mr. Groia’s inappropriate conduct. The application, although novel and unsuccessful, was reasonable in light of the nature and quality of that conduct. It was necessary to review the record extensively before it became clear that his extreme conduct did not deprive the court of jurisdiction. To award costs to the defence in this case would be unfair to the prosecution and contrary to the public interest in the administration of justice. The behaviour indulged in by Mr. Groia should be discouraged, not encouraged by an award of costs. To award costs to the defence would carry the wrong message by rewarding him for the conse- quences of his unacceptable conduct.16 The Ontario Securities Commission appointed new prosecutors to the case, and the trial proceeded without incident for another 90 days. In 2007, Mr Felderhof was acquitted of all charges. The Law Society Prosecution In 2003, the Law Society of Ontario (formerly the Law Society of Upper Canada) became aware of Mr Groia’s conduct through the media. The Law Society notified Mr Groia that it was looking into the matter in a letter dated April 3, 2003. In 2004, the Law Society began an investigation of Mr Groia’s conduct in the Fel- derhof trial during the period from 1999 to 2001 (the first phase). In 2009, the Law Society charged Mr Groia with professional misconduct. The Law Society Hearing Panel heard evidence in 2011 and 2012, and found Mr Groia guilty of professional misconduct on June 28, 2012. At the conclusion of reasons for the decision, the Hearing Panel17 noted the following: One of Groia’s witnesses, Nicholas Richter, acknowledged that allegations of prosecutorial misconduct should not be made in the absence of any foundation in the record. … The statements of Justices Campbell and Rosenberg about Mr. Groia’s misapprehension of the role of a prosecutor and of the rules of evidence raise another question for the panel. Mr. Groia, according to the witnesses, is an experienced trial lawyer who has both prosecuted Securities Act offences and defended persons charged with such offences. Neither 16 Ibid at para 100. 17 Law Society of Upper Canada v Joseph Peter Paul Groia, 2012 ONLSHP 94. 38 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Justice Campbell nor Justice Rosenberg decided any new or novel points of law in their respective decisions. This leaves the panel to ask whether Mr. Groia simply did not understand the legal duties and obligations of the prosecutor and the rules of evidence or instead ignored them in pursuit of a trial strategy aimed at baiting the prosecution into making mistakes or aimed at convincing the trial judge through rhetoric rather than evidence that the prosecution was indeed engaged in prosecutorial misconduct. [Emphasis added.] Mr. Groia did not leave the panel with the impression that he was incompetent. On the contrary, his experience and competence were quite evident during his testimony. Although he is not a lawyer who believes in the old adage “be seen, be brief and be gone,” we have concluded that he was more than competent to carry out Mr. Felderhof’s defence as Mr. Felderhof’s lead counsel. In other words, he either knew or ought to have known that his persistent allegations of prosecutorial misconduct were wrong in law and the positions he took on documents were not well-founded in the law of evidence or in accord with usual practices in large document cases. We are therefore drawn to the conclusion that … Groia’s attacks on the prosecution were unjustified and therefore constituted conduct that fell below the standards of principles of civility, courtesy and good faith required by the Rules of Professional Conduct. [Emphasis added.]18 The Hearing Panel imposed a licence suspension of two-and-a-half months and a fine of $245,000.00. On appeal by Mr Groia, the Law Society Appeal Panel upheld the finding of the Hearing Panel that the appellant had engaged in professional misconduct, but varied the particulars and the reasons. The panel reduced the costs from $246,960.53 to $200,000.00, and the licence suspension from two-and-a-half months to one month. In its 2013 reasons, the Appeal Panel19 stated the following: Having concluded that the hearing panel should have refused to apply the abuse of process doctrine, we give no deference to the findings of fact and assessments of credibility. Nor are we well positioned to make our own assessments of credibility. Accordingly, in assessing Mr. Groia’s conduct over the first 70 days of the Felderhof trial, we assumed that he honestly believed what he was saying. Nevertheless, taken as a whole, many of the comments he made crossed the line: they included repeated personal attacks on the integrity of the prosecutors and repeated allegations of deliberate prosecutorial wrongdoing that did not have a reasonable basis and were not otherwise justified by the context. [Emphasis added.]20 Mr Groia appealed the Appeal Panel’s decision to the Divisional Court (the appellate branch of the Superior Court of Justice). The Law Society cross-appealed the reduction in the costs ordered. Both the appeal and the cross-appeal were dismissed.21 18 Ibid at paras 188-190. 19 Law Society of Upper Canada v Joseph Peter Paul Groia, 2013 ONLSAP 41 at para 10. 20 Ibid at para 10. 21 Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686 (Div Ct). CHAPTER 2 Professionalism  39 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Mr Groia then appealed to the Ontario Court of Appeal in Groia v The Law Soci- ety of Upper Canada.22 The appeal was dismissed by the majority of the court. Of interest is the dissent of Brown JA, who noted the following: This is a singular case. The Felderhof trial lasted several years, split into two phases. Phase One lasted 70 days; Phase Two, 90 days. Neither during nor after the trial did anyone involved in the trial complain to the Law Society of Upper Canada about Mr. Groia’s conduct: not the prosecutors; not the trial judge; not the clients; nor any witness. No one. The prosecution, the Ontario Securities Commission (“OSC”), did complain about Mr. Groia’s conduct, but not to the Law Society. The OSC complained to the courts. The prosecution first complained to the trial judge about Mr. Groia’s conduct. The trial judge made several rulings. The rulings did not satisfy the prosecution, so it applied to the Superior Court of Justice arguing, in part, that Mr. Groia’s conduct, and what they saw as the trial judge’s failure to restrain it, were resulting in an unfair trial. The prosecution wanted the trial stopped, and a new trial judge appointed. The application judge of the Superior Court of Justice refused to remove the trial judge. The OSC appealed to this court. The appeal was dismissed. So, the trial continued to its conclusion—an acquittal of Mr. Felderhof. The senior courts to which the prosecutors complained were not silent about Mr. Groia’s conduct. Quite the contrary. In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up. He listened, and he did. Phase Two continued without incident. Neither the application judge nor any of the members of this court in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, complained to the Law Society. That option was open to them. That is what the British Columbia Court of Appeal did in R. v. Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667 (CanLII), 191 B.C.A.C. 223. But that is not what the courts did in this case. A public shaming was administered; directions for the remainder of the trial were given; the courts moved on. But not the Law Society. In 2003, a staff member read an article about the Felderhof trial. A file was opened. In 2009, after the trial had ended, the Law Society commenced professional misconduct proceedings against Mr. Groia, acting as its own complainant. [Emphasis added.] The Law Society Hearing Panel and Appeal Panel found that Mr. Groia had engaged in professional misconduct for his uncivil and unprofessional courtroom submissions and statements during the Felderhof trial. The Divisional Court dismissed Mr. Groia’s appeal from the Appeal Panel’s findings of misconduct, penalty and costs. 22 2016 ONCA 471. 40 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  My colleague would uphold those results. I must respectfully disagree with much of her analysis and with her result. I would grant Mr. Groia’s appeal.23 See the excerpt below from Brown JA’s reasons for judgment in Groia v The Law Society of Upper Canada at paragraphs 435 to 438. Taking into consideration all three elements of the test for determining whether a barrister’s in-court conduct amounts to professional misconduct, I conclude that the Appeal Panel erred in finding that Mr. Groia had engaged in professional misconduct. A hard-fought, high-profile criminal trial saw inappropriate submissions and allegations by Mr. Groia over the course of several days in Phase One. The trial judge responded to the prosecution’s complaints about that inappropriate conduct. He ultimately directed Mr. Groia to stop making allegations of prosecutorial misconduct. Mr. Groia complied with the trial judge’s rulings. This court then gave strong directions to both the trial judge and Mr. Groia about how to deal with the disputed evidentiary and abuse of process issues during the balance of the trial. This court found that the fairness of Phase One of the trial had not been compromised by Mr. Groia’s conduct and the prosecution was not prevented from having a fair trial. At the same time, this court administered a “public shaming” to Mr. Groia. He mended his ways during the balance of the trial. The remaining 90 days of the trial proceeded without incident. And, no one involved in the trial or the judicial reviews complained to the Law Society about Mr. Groia’s conduct. Great weight must be given to Mr. Groia’s compliance with the directions of the courts and to the fact that his conduct did not affect trial fairness. When that is done, and when the circumstances of the Felderhof trial are looked at in their entirety, I conclude that Mr. Groia did not engage in professional misconduct contrary to the Rules of Professional Conduct. Consequently, I conclude that the Appeal Panel erred in determining that he did.24 In 2018, when the majority of the Ontario Court of Appeal dismissed his action, Mr Groia appealed to the Supreme Court of Canada,25 which allowed his appeal. The majority accepted that the impugned conduct upon which the Law Society based its finding of incivility by Mr Groia had been based upon genuine, if mistaken, beliefs. Note that the following two paragraphs are excerpted from the summary of the court’s reasons that precedes the transcript of the reasons themselves. In those paragraphs, “G” refers to Mr Groia, the appellant. With respect to what the lawyer said, while not a stand alone “test,” the Appeal Panel determined that prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable 23 Ibid at paras 244-253. 24 Ibid at paras 435-438. 25 Groia v Law Society of Upper Canada, 2018 SCC 27. CHAPTER 2 Professionalism  41 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  basis. Requiring a reasonable basis for allegations protects against unsupportable attacks that tarnish opposing counsel’s reputation without chilling resolute advocacy. However, the reasonable basis requirement is not an exacting standard. It is not professional misconduct on account of incivility to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted. Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. The good faith inquiry asks what the lawyer actually believed when making the allegations. In contrast, the “reasonable basis” inquiry requires a law society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations. Looking at the reasonableness of a lawyer’s legal position at this stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context—this would allow a law society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the law society’s opinion, ought to have known or ought to have done. This would risk unjustifiably tarnishing a lawyer’s reputation and chilling resolute advocacy. Although the approach that it set out was appropriate, the Appeal Panel’s finding of professional misconduct against G on the basis of incivility was unreasonable. First, even though the Appeal Panel accepted that G’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. The Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief cannot ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the OSC prosecutors, G was not deliberately misrepresenting the law and was not ill-motivated. Despite this, the Appeal Panel used G’s legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety. Such a finding was not reasonably open to the Appeal Panel.26 Moldaver J for the court begins with a brief overview: The trial process in Canada is one of the cornerstones of our constitutional democracy. It is essential to the maintenance of a civilized society. Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way. To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve. By the same token, trials are not—nor are they meant to be—tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. 26 Ibid in the headnote summary of the majority’s reasons (emphasis added). 42 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility. The proceedings against the appellant, Joseph Groia, highlight the delicate interplay that these considerations give rise to. At issue is whether Mr. Groia’s courtroom conduct in the case of R. v. Felderhof, 2007 ONCJ 345 (CanLII), 224 C.C.C. (3d) 97, warranted a finding of professional misconduct by the Law Society of Upper Canada. To be precise, was the Law Society Appeal Panel’s finding of professional misconduct against Mr. Groia reasonable in the circumstances? For the reasons that follow, I am respectfully of the view that it was not. The Appeal Panel developed an approach for assessing whether a lawyer’s uncivil behaviour crosses the line into professional misconduct. The approach, with which I take no issue, targets the type of conduct that can compromise trial fairness and diminish public confidence in the administration of justice. It allows for a proportionate balancing of the Law Society’s mandate to set and enforce standards of civility in the legal profession with a lawyer’s right to free speech. It is also sensitive to the lawyer’s duty of resolute advocacy and the client’s constitutional right to make full answer and defence. Moreover, the Appeal Panel’s approach is flexible enough to capture the broad array of situations in which lawyers may slip into uncivil behaviour, yet precise enough to guide lawyers and law societies on the scope of permissible conduct. That said, the Appeal Panel’s finding of professional misconduct against Mr. Groia on the basis of incivility was, in my respectful view, unreasonable. Even though the Appeal Panel accepted that Mr. Groia’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous views as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. However, as I will explain, Mr. Groia’s allegations were made in good faith and they were reasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct. Nor could the other contextual factors in this case reasonably support a finding of professional misconduct against Mr. Groia on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of Mr. Groia’s allegations; the presiding judge took a passive approach in the face of Mr. Groia’s allegations; and when the presiding judge and reviewing courts did direct Mr. Groia, apart from a few slips, he listened. The Appeal Panel failed to account for these contextual factors in its analysis. In my view, the only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that Mr. Groia was not guilty of professional misconduct. Accordingly, I would allow Mr. Groia’s appeal.27 27 Ibid at paras 1-9 (emphasis added). CHAPTER 2 Professionalism  43 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Questions for Discussion The Felderhof Trial 1. During the first 70 days of the Felderhof trial in the Supreme Court of Ontario, there were two issues in dispute between Mr Groia and the OSC prosecutors that were the basis for the acrimony between them. What were those issues and what was the nature of the dispute? 2.a. At the conclusion of the first phase of the trial, the prosecution made an application to the Superior Court of Justice. What relief was it seeking, and what was the basis for seeking that relief? 2.b. What order did Campbell J make? 2.c. Was Campbell J sympathetic to the defence? 3. The matter was then appealed to the Ontario Court of Appeal. Did the Court of Appeal grant the relief sought by the appellant? 4. How did Rosenberg JA deal with the allegations about Mr Groia’s conduct? 5. How did the Court of Appeal deal with Mr Felderhof’s cross-claim for costs at the application stage? The Law Society Prosecution 6. When and how did Mr Groia’s conduct during the first phase of the Felderhof trial come to the attention of the Law Society? Was there a complaint from any of the participants in the Felderhof trial? 7. Review paragraphs 189 and 190 of the Law Society Hearing Panel’s 2012 decision in Law Society of Upper Canada v Joseph Peter Paul Groia, extracted above. What was the Law Society Hearing Panel’s view with respect to Mr Groia’s misapprehension of the role of the prosecutor and the rules around documentary disclosure, as stated by Campbell J and Rosenberg JA in the prosecution’s application to have Hryn J dismissed? The Law Society Appeal Panel 8. Mr Groia then appealed to the Law Society Appeal Panel. Did the Appeal Panel accept the Hearing Panel’s opinion about Mr Groia’s beliefs around the law that governs the role of the prosecutor and the disclosure of documents? The Appeal to the Ontario Court of Appeal 9. Review Brown JA’s comments at paragraphs 244 to 253 in his dissent in Groia v The Law Society of Upper Canada, above. Does Brown JA approve of the Law Society’s intervention? The Appeal to the Supreme Court of Canada 10. Review and discuss the excerpts from the summary of the majority’s reasons at the Supreme Court of Canada, and Moldaver J’s overview. How does Moldaver J attempt to balance the regulator’s role with the obligations of defence counsel? 44 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Outside Interests and Public Office (Rules 2.01(4), (5); Guideline 2) A paralegal who engages in another profession, business, occupation, or other ­outside interest, or who holds public office at the same time as she or he is pro- outside interest viding legal services, shall not allow the outside interest or public office to jeopardize any profession, business, the paralegal’s integrity, independence, or competence.28 A paralegal shall not allow occupation, or other activity, involvement in an outside interest or public office to impair the exercise of his or her including holding public office, independent judgment as a paralegal on behalf of a client.29 The question of whether engaged in by a paralegal and to what extent it is proper for the paralegal to engage in the outside interest will concurrently with the provision of legal services be subject to any applicable By-Law or rule of the Law Society. Guideline 2 comments: 1.  The term “outside interest” covers the widest range of activities. It includes activities that may overlap or be connected with provision of legal services, for example, acting as a director of a corporation or writing on legal subjects, as well as activities less connected such as, for example, a career in business, politics, broadcasting or the performing arts. 2.  When participating in community activities, a paralegal should be mindful of the possible perception that the paralegal is providing legal services and a paralegal – client relationship has been established. A paralegal should not carry on, manage or be involved in any outside interest in such a way that makes it difficult to distinguish in which capacity the paralegal is acting, or that would give rise to a conflict of interest or duty to a client. 3.  It is the paralegal’s responsibility to consider whether the outside interest may impair his or her ability to act in the best interest of his or her client(s). If so, the paralegal must withdraw, either from representation of the client or from the outside interest. 4.  When acting in another role, the paralegal must continue to fulfill his or her obligations under the Rules, for example, to act with integrity, be civil and courteous, be competent in providing legal services, avoid conflicts of interest, and maintain confidentiality. A conflict of interest arises when there exists a substantial risk that a paralegal’s conflict of interest loyalty to or representation of a client would be materially and adversely affected by the an interest, financial or paralegal’s own interest or the paralegal’s duties to another client, a former client, or a otherwise, that may negatively third person. The risk must be more than a mere possibility. There must be a genuine, affect a paralegal’s ability to serious risk to the duty of loyalty or to client representation arising from the retainer.30 fulfill her or his professional and ethical obligations to a A paralegal who is in a situation where involvement in an outside interest gives rise client to a substantial risk that the paralegal’s loyalty to or representation of a client or clients 28 Rule 2.01(4). 29 Rule 2.01(5). 30 Rule 1.02 definitions. CHAPTER 2 Professionalism  45 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  will be adversely affected shall decide whether to withdraw from representation of the client or clients, or cease involvement in the outside interest. When contemplating involvement in an outside interest, a paralegal shall also consider whether involvement in the outside interest will adversely affect her or his professional competence by, for example, taking up so much time that the paralegal is unable to attend properly to a clients’ interests. BOX 2.3 OUTSIDE INTERESTS Fact Situation You have been a member of the board of directors of a small, publicly funded com- munity organization for two years. The organization consists of a general manager, four full-time staff, and a part-time office assistant. You are the only licensee on the board. During the course of your directorship, the general manager and you have become friendly. Over the past few months, the general manager has begun calling you at your office more frequently. She is unhappy with the performance of Gloria, one of the full-time staff. Gloria has begun to take a lot of sick days. She takes long lunches and does not always complete the tasks assigned to her, placing an extra burden on the other staff. She is rude to her co-workers. Her conduct has caused resentment, disruption, and inconvenience. The general manager is at a point where she would like to terminate Gloria’s employment. She wants your advice about how to manage the situation. Question for Discussion What are your obligations in these circumstances? Acting as a Mediator (Rule 2.01(6); Guideline 2) mediation Mediation is a non-adversarial process in which a qualified, impartial third party a non-adversarial process in (the mediator) helps to resolve the differences between the parties to a dispute. A which a qualified and impartial mediator has a duty to be neutral in relation to the participants in the mediation—that third party (the mediator) helps is, the mediator must have no preconceived opinions or biases in favour of or against the parties to a dispute resolve one party or another. their differences The role of a paralegal mediator does not involve providing legal services to either mediator party in the mediation. Rule 2.01(6) states: a qualified and impartial third party who helps the parties to a A paralegal who acts as a mediator shall, at the outset of the mediation, ensure dispute resolve their differences that the parties to it understand fully that the paralegal is not acting as a through mediation representative for either party but, as mediator, is acting to assist the parties to resolve the issues in dispute. A paralegal mediator shall also advise the parties that he or she cannot represent either or both of the parties in any subsequent legal matter related to the issues mediated. 46 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Guideline 2 comments: 5.  A mediator works with disputing parties to help them resolve their dispute. A paralegal acting as a mediator is not providing legal services to either party—the relationship is not a paralegal – client relationship. This does not preclude the mediator from giving information on the consequences if the mediation fails. 6.  When acting as a mediator, the paralegal should guard against potential conflicts of interest. For example, neither the paralegal nor the paralegal’s partners or associates should provide legal services to the parties. Further, a paralegal- mediator should suggest and encourage the parties to seek the advice of a qualified paralegal or a lawyer before and during the mediation process if they have not already done so. Refer to Guideline 9: Conflicts of Interest for more information on how a paralegal’s outside interests may conflict with the paralegal’s duty to his or her clients. The commentary to section 5.7 of the Rules of Professional Conduct for lawyers31 recommends that if, in the course of a mediation, a mediator prepares a draft settle- ment for the parties to consider, the mediator should expressly (that is, in writing) advise and encourage the parties to seek separate independent legal representation for purposes of reviewing the draft settlement contract. Undertakings and Trust Conditions (Rules 2.02, 6.01; Guideline 3) Undertakings (Rule 2.02) An undertaking is a promise to carry out specific tasks and/or fulfill specific condi- undertaking tions.32 Undertakings given by licensees are “matters of the utmost good faith and an unequivocal, personal must receive scrupulous attention.”33 promise by a paralegal to Rule 2.02(1) states that a paralegal shall fulfill every undertaking given, and shall perform a certain act not give an undertaking that cannot be fulfilled. Except in exceptional circumstances, undertakings shall be made in writing at the time they are given, or confirmed in writing as soon as possible thereafter.34 Unless the language of the undertaking clearly states otherwise, a paralegal’s undertaking is a personal promise, and it is the para- legal’s personal responsibility to fulfill the undertaking.35 Guideline 3 comments: 2.  An undertaking is a personal promise. A paralegal could, for example, give an undertaking to complete a task or provide a document. Fulfilling that promise is the responsibility of the paralegal giving the undertaking. 3.  The person who accepts the paralegal’s undertaking is entitled to expect the paralegal to carry it out personally. Using the phrase “on behalf of my client,” even in the undertaking itself, may not release the paralegal from the obligation 31 Law Society of Ontario, Rules of Professional Conduct (February 2017; amendments current to 26 April 2018), online:. 32 Guideline 3. 33 Towne v Miller, 2001 CanLII 28006 at para 11, 56 OR (3d) 177 (Sup Ct J). 34 Rule 2.02(2). 35 Rule 2.02(3). CHAPTER 2 Professionalism  47 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  to honour the undertaking. If a paralegal does not intend to take personal responsibility, this should be clearly outlined in the written undertaking. In those circumstances, it may only be possible for the paralegal to personally undertake to make “best efforts.” 4.  A court or a tribunal may enforce an undertaking. The paralegal may be brought before a court or tribunal to explain why the undertaking was not fulfilled. The court or tribunal may order the paralegal to take steps to fulfill the undertaking and/or pay damages caused by the failure to fulfill the undertaking. 5.  To avoid misunderstandings and miscommunication, a paralegal should remember the following points about undertakings. A paralegal should ensure that the wording of the undertaking is clear. If a paralegal is the recipient of an undertaking given by another paralegal or a lawyer, the paralegal should ensure that the wording is clear and consistent with his or her understanding of the undertaking. The paralegal should contact the other paralegal or lawyer to clarify the issue as soon as possible if this is not the case. should consider specifying a deadline for fulfilling the undertaking. should ensure that the undertaking provides for contingencies (e.g. if the obligations in the undertaking rely on certain events occurring, the paralegal should indicate what will happen if these events do not occur). should confirm whether or not the individual providing the undertaking is a paralegal or a lawyer. Undertakings, whether given or received, should always be in writing. It is extremely unwise to give or accept an undertaking that does not state a deadline for completion. Deadlines should be reasonable and should reflect the complexity of the tasks to be performed and/or the nature and volume of the documents to be produced. You should consider agreeing to a reasonable request for an extension of a deadline by another party, if no prejudice to your client would result. Do not give an undertaking, whether personal or “best efforts,” that you know cannot be performed. fulfill (or answer) an undertaking Diarize any deadlines for completing undertakings, including undertakings to to complete the requirements be completed by other parties. To fulfill (or answer) an undertaking means to of the undertaking complete the requirements of the undertaking. To diarize means to note a deadline or other important date in your tickler system, along with a series of bring-forward diarize to note a deadline or other dates to remind you that the deadline is approaching. A tickler system is a paper or important date in a tickler electronic system that gives you notice in advance of upcoming deadlines (including system, along with a series limitation periods) or tasks to be completed. of bring-forward dates as It is good and courteous professional practice to fulfill your own undertakings as reminders that the deadline is soon as possible after they are given. If other parties fail to fulfill their undertakings by approaching the stated deadline, you should follow up with them immediately in writing. As noted tickler system above, a court or tribunal may order a paralegal to perform an undertaking and/or pay a paper or electronic system any damages caused by the breach of undertaking. A breach of undertaking is a that gives notice of upcoming failure to fulfill an undertaking. deadlines (including limitation periods) or tasks to be completed BEST EFFORTS UNDERTAKINGS breach of undertaking Sometimes you will be asked for an undertaking that is reasonable, but is not in your failure to fulfill an undertaking power to fulfill. An example would be a request by another party for documents that 48 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  are relevant to issues in a matter and that may be available to your client or another person, but have not been produced to you. You cannot take personal responsibility for production of the documents, because their production is not in your control. Guideline 3 comments that a person who accepts a paralegal’s undertaking is entitled to expect the paralegal to carry it out personally. Using the phrase “on behalf of my client” in an undertaking may not release the paralegal from the obligation to honour the undertaking. If you do not intend to take personal responsibility for fulfilling the undertaking, the language stating this in the undertaking should be clear and unequivocal. In such a case, where honouring the undertaking depends on the actions of another person, you should undertake to make best efforts. Best efforts best efforts means that you will make good-faith efforts to see that the undertaking is fulfilled, but a paralegal’s effort to do what you will not assume personal responsibility for answering it. he or she can to ensure that an undertaking is fulfilled, without assuming personal responsibility BOX 2.4 WHAT ARE A PARALEGAL’S RESPONSIBILITIES IN A “BEST EFFORTS” UNDERTAKING? Giving another party a best efforts undertaking does not absolve a paralegal from making a good-faith effort to ensure that the undertaking is fulfilled. As the court noted in Gheslaghi v Kassis:36 A promise to use one’s best efforts … is an undertaking which a court will enforce and, in appropriate cases, apply sanctions for non-performance where serious efforts have not been undertaken. “Best efforts” mean just what one would expect the words to mean. The words mean that [a licensee] and his/her client will make a genuine and substantial search for the requested information and/or documentation. The undertaking is not to be taken lightly—a cursory inquiry is not good enough. … If a party and/or [licensee] is/are not able to discover the subject of the undertaking, [the party and/or licensee] must be able to satisfy a court that a real and substantial effort has been made to seek out what is being requested by the other party.37 Failure to fulfill an undertaking is a breach of Rule 2.02, and may result in another party making a complaint to the Law Society about you. The Law Society will review the situation, and may discipline you for a breach of undertaking, which may result in a finding of professional misconduct. This is why it is very important to have clear language in an undertaking about who is to fulfill the undertaking, what action is to be taken or documents produced, deadlines for completion, and so on. Undertakings Given to the Law Society (Rules 6.01(8), (9)) In certain circumstances, a paralegal or a non-licensee may be required to give an undertaking to the Law Society. 36 2003 CanLII 7532, OJ No 5196 (QL) (Sup Ct J). 37 Ibid at para 7. CHAPTER 2 Professionalism  49 Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  A paralegal whose licence to provide legal services has been suspended may be required to give an undertaking to the Law Society not to provide legal services. In such a case, the paralegal shall not (a) provide legal services, or (b) represent or hold himself or herself out as a person entitled to provide legal services.38 A paralegal required to give an undertaking to the Law Society to restrict his or her provision of legal services shall comply with the undertaking (Rule 6.01(9)). Failure to comply with undertakings given to the Law Society could result in disci- plinary action. Trust Conditions (Rule 2.02; Guideline 3) In certain circumstances, a paralegal may be required to hold documents and property in trust until certain conditions have been performed. The conditions pursuant to trust condition which the documents and property are held are called trust conditions.39 A paralegal a condition or conditions that shall honour every trust condition once accepted.40 must be performed before a Once a trust condition is accepted, it is binding upon a paralegal, whether it is paralegal may release certain imposed by another legal practitioner or by a layperson. A legal practitioner is a documents and/or property held person: in trust by the paralegal legal practitioner (a) who is a licensee; a person who is a member (b) who is not a licensee but who is a member of the bar of a Canadian of the bar in a Canadian jurisdiction, other than Ontario, and who is authorized to practise law as a barrister jurisdiction other than Ontario, and solicitor in that other jurisdiction.41 and is authorized to practise law as a barrister and solicitor With respect to trust conditions, Guideline 3 comments: in that jurisdiction; a lawyer 7.  Trust conditions should be clear, unambiguous and explicit and should state the time within which the conditions must be met. Trust conditions should be imposed and accepted in writing. Trust conditions may be varied with the consent of the person imposing them, and the variation should be confirmed in writing. 8.  A paralegal should not impose or accept trust conditions that are unreasonable, nor accept trust conditions that cannot be fulfilled personally. When a paralegal accepts property subject to trust conditions, the paralegal must fully comply with such conditions, even if the conditions subsequently appear unreasonable. 9.  A paralegal may seek to impose trust conditions upon a non-licensee, but great caution should be exercised in so doing since such conditions would be enforceable only through the courts as a matter of contract law. 38 Rule 6.01(8). 39 Guideline 3, para 1. 40 Rule 2.02(4). 41 Rule 1.02. 50 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for Paralegals, 5th Edition  Professional Conduct and the Ontario Human Rights Code Harassment and Discrimination (Rule 2.03; Guideline 4) General (Rules 2.03(1), (2)) prohibited grounds Rule 2.03(1) incorporates the principles of the Ontario Human Rights Code (“the grounds upon which Code”)42 and related case law into the interpretation of Rule 2.03. This means that discrimination is prohibited by Rule 2.03, the Code, and any relevant case law applying and interpreting the Code the Ontario Human Rights Code must be read together. A term used in Rule 2.03 that is defined in the Code has the (s 1)—race or colour, ancestry, same meaning as in the Code.43 place of origin, ethnic origin, citizenship, creed, sex, sexual The Ontario Human Rights Code orientation, gender identity, gender expression, age, marital The Ontario Human Rights Code gives every person equal rights and opportunities or family status, or disability; without discrimination in the following areas: for purposes of employment, record of offence is a prohibited services, goods, and facilities; ground of discrimination; in accommodation (housing); the context of housing only, contracts; the receipt of public assistance employment; and is also a prohibited ground of discrimination membership in trade or vocational associations, trade unions, and self- governing professions. ancestry family descent PROHIBITED GROUNDS place of origin for purposes of the Ontario The Code prohibits discrimination or harassment of persons with respect to activities Human Rights Code, a person’s in any of the above areas on any of the following prohibited grounds: country or region of birth, including a region in Canada Race or colour. There is an exemption for special service organizations. ethnic origin Ancestry and place of origin. Ancestry refers to family descent. Place of origin cultural background means country or region of birth, and includes regions in Canada. Ethnic origin. Ethnic origin relates to cultural background. creed religion or faith Citizenship. Citizenship refers to citizenship status, including landed immigrant, refugee, or non-permanent resident. Discrimination on the basis of citizenship is accommodation allowed in the circumstances set out in section 16 of the Code. an action take