Playing by the Rules
The Law Society of Upper Canada’s amendments to the Rules of Professional Conduct for lawyers and paralegals came into effect on October 1, 2014. The new Rules are based on the Model Code of Professional Conduct proposed by the Federation of Law Societies of Canada. The Law Society’s Professional Regulation Committee approved the amended Rules for lawyers at Convocation in October 2013 and for paralegals in February 2014.
The new Rules include a number of changes that are relevant to all legal practitioners in Ontario. Lawyers and paralegals should take the time to review the amended Rules. The Law Society has published a black-lined version showing the amendments for ease of review, and a concise summary of the changes as well.
With respect to wills and estates, there are a few changes which are notable. Some of these changes have been the subject of blogs in the past.
The new Rule 3.4-37 applies where a will includes a clause directing the estate trustee to retain the drafting lawyer’s firm to act for him or her in the administration of the estate:
3.4-37 If a will contains a clause directing that the lawyer who drafted the will be retained to provide services in the administration of the client’s estate, the lawyer should, before accepting that retainer, provide the trustees with advice, in writing, that the clause is a non-binding direction and the trustees can decide to retain other counsel.
Another rule of note addresses wills which leave gifts to the drafting lawyer:
3.4-38 Unless the client is a family member of the lawyer or the lawyer’s partner or associate, a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or an associate a gift or benefit from the client, including a testamentary gift.
Interestingly, while a lawyer who improperly drafts a will which gives himself or herself a testamentary gift will have offended the Rules of Professional Conduct, the gift itself may still be valid at law unless it can be shown to invalid for some other reason, such as undue influence or a lack of knowledge and approval by the testator.
Lawyers and paralegals in Ontario should spend some time reading over the amended Rules of Professional Conduct that govern their professions. Knowing the Rules will help lawyers and paralegals serve their clients more effectively and enhance public confidence in legal practitioners and in the administration of justice.