A lawyer must deliver services to clients based on:
- an up to date1 and a sound knowledge of the law2,
- the ability to undertake the services3,
- an understanding of ethical considerations4,
- client expectations5,
- the skills to deliver culturally competent services6 in a cost-effective manner7 and
- to provide these services in a non-discriminatory manner.8
A lawyer should always provide clear, candid, and timely service and communication when interacting with their client.9
A lawyer should always communicate with courtesy and good faith with their client and with all other relevant parties involved in a matter.10
A lawyer must provide reasonable accommodation to the point of undue hardship or as required by law.11
1Regulation 8.3.4 permits the Council of the Nova Scotia Barristers’ Society to from time to time prescribe mandatory training and educational requirements. As per regulation 8.3.6, in each of the society’s fiscal years (July 1- June 30), members are expected to complete a minimum of 12 hours of Continuing Professional Development.
Under regulation 8.3.8 every member is required to prepare and implement a written plan for continuing professional development, make a declaration to the Executive Director that a plan has been prepared and implemented, maintain a record of continuing professional development undertaken and keep the record for five years from the date of declaration; and provide a copy of the plan and the record of continuing professional development undertaken to the Executive Director on request.
For additional information see “Creating a CPD Plan” on the Society’s website https://nsbs.org/legal-profession/your-practice/responsibilities-requirements/professional-development/creating-a-cpd-plan/ ) See also: Commentary  set out under rule 3.1-2 of the Code. In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a particular matter, relevant factors will include the complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field, the preparation and study the lawyer is able to give the matter and whether it is appropriate or feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
2See Commentaries  through  set out under rule 3.1-2 of the Code. For practical purposes, knowledge is generally regarded as including the ability to acquire the knowledge of law, procedure and relevant technology necessary to provide the legal services the client requires.
3This may include consulting with alternative or even specialized counsel or solicitors if necessary. See also Commentaries (e) and (b) set out under rule 3.1-2 of the Code.
See also 3.2-2B of the Code: where a client wishes to retain a lawyer for representation in the official language of the client’s choice, the lawyer must not undertake the matter unless the lawyer is competent to provide the required services in that language, or if the lawyer feels competent to provide the required services with the assistance of an interpreter.
4See Rule 3.2-2 of the Code and in particular Commentary  –  which requires that a lawyer disclose to the client all the circumstances of the lawyer’s relations to the parties and interest in or connection with the matter that might influence whether the client selects or continues to retain the lawyer.
Advice to a client must be “open and undisguised” and must clearly disclose what the lawyer honestly thinks about the merits and probable results. Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation of the rule.
In communicating with the client, the lawyer may disagree with the client’s perspective, or may have concerns about the client’s position on a matter and may give advice that will not please the client. This may legitimately require a firm and animated discussion with the client.
The lawyer should take a culturally and trauma informed approach (see footnote six for a discussion on being on cultural competency and being a trauma informed lawyer) to any such discussions. While firmness may be required, the lawyer should not engage in a manner that causes further harm to the client.
See Rule 3.2-7 and in particular Commentary  –  that cautions lawyers to be on guard against becoming a tool of an unscrupulous client or others. A lawyer must be vigilant against becoming unwittingly involved in criminal activities such as fraud and money laundering. If suspicious, lawyers should make reasonable inquiries to obtain information about the client or others, and the subject matter of their retainer including verifying legal owners of properties and business entities, and clarifying the purpose of complex transactions. Lawyers should keep records of their inquiries. Bona fide test cases are not necessarily precluded provided no injury to a person or violence is involved.
See also Rule 3.2-8 and commentary which requires a lawyer who knows an organization has acted or intends to act dishonestly, fraudulently, criminally or illegally must advise the person from whom they take instructions that the proposed conduct is dishonest, etc. If the person providing instructions refuses to take action, the lawyer must report “up the ladder” of responsibility within the organization until the matter is dealt with appropriately. If the organization, despite the lawyer’s advice, continues the wrongful conduct, the lawyer must withdraw from acting and in some but not all cases, withdrawal means resigning from their position within the organization and not just from the particular matter.
5See Commentary  set out under rule 3.2-1 and Commentaries  and  set out under rule 3.1-2 of the Code. The latter Commentaries warn lawyers to be wary of bold and perhaps overconfident predictions on the outcome of any given matter and to advise of any lack of experience or other qualification in a particular field.
6See Wolley, Alice; Richard F. Devlin & W. Brent Cotter. Lawyers’ ethics and professional regulation, fourth ed (Toronto, Ontario: LexisNexis, 2021) at p. 119-121 for their discussion on cultural competence.
Rose Voyvodic in, “Lawyers Meet the Social Context: Understanding Cultural Competence” (2005) 84: Special Issue Can. Bar Rev. 563 at 582 (as found in Wolley et al at p. 120) argues that cultural competence has three dimensions:
- KNOWLEDGE: about how “cultural” differences affect client experiences of the legal process as well as their interactions with lawyers;
- SKILLS: through self-monitoring, to identify how assumptions and stereotypes influence their own thinking and behaviour, as well as the thinking and behaviour of others, and to work to lessen the effect of these influences;
- ATTITUDE: awareness of themselves as a cultural being and of the harmful effects of power and privilege; and the willingness and desire to practice competently in the pursuit of justice.
For a conversation around cultural competence and truth and reconciliation see Pooja Parmar in, “Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence” (2019) 97:3 Canadian Bar Review 526-557.
The Truth and Reconciliation Commission’s twenty-seventh Calls to Action call upon the Federation of Law Societies of Canada to:
…ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Crown-Indigenous Relations and Northern Affairs Canada. Delivering on Truth and Reconciliation Commission Calls to Action 2023: https://www.rcaanc-cirnac.gc.ca/eng/1524502695174/1557513515931=
For a discussion on African Nova Scotian cultural competency see Legal Info Nova Scotia webinar entitled “Best Practices when Working with African Nova Scotian Clients” – Legal Info Nova Scotia. Cultural Competence Videos, 2022: https://www.legalinfo.org/cultural-competence-videos#video-highlighting-the-african-nova-scotian-community-4
When communicating with your client you should use gender neutral language until you learn of your client’s preferred pronouns. See the Canadian Bar Association (Nova Scotia) Gender Neutral Terminology Guide which states:
Moving beyond the use of gendered titles within the legal profession (e.g., Sir/Madam; my Lord/my Lady; Mr. Justice/Madam Justice) helps to create and support a more equitable, diverse, and inclusive justice system by removing gendered distinctions and using inclusive language. Using gender neutral terminology also avoids the risk of misgendering a person whose gender you don’t know, until such time as you learn their pronouns. The Canadian Bar Association Nova Scotia Branch. Gender Neutral Terminology Guide 2022: https://www.cbans.ca/getattachment/Publications-Resources/Resources/Gender-Neutral-Terminology-Guide-2022/Gender-Neutral-Terminology-Guide-2022/CBA-NS_Gender-Neutral-Terminology-Guide_2022.pdf
Generally speaking, competency includes: an understanding of the subject matter for which the lawyer has been retained (or, in the alternative, the ability to acquire an understanding of that subject matter, legal research, analysis, application of the law to the relevant facts, writing and drafting, negotiation, alternative dispute resolution, organized and persuasive advocacy (both written and oral) and problem solving.)
In certain circumstances, a lawyer’s ethical duty to their client will require the referral of the latter to alternative counsel or at least the retention (on the client’s instructions) of the assistance of alternative counsel and/or other experts in non-legal fields (see: Commentaries  through  set out under rule 3.1-2 (supra).
See also rule 3.1-2 of the Code and footnote 4 (supra). See also the extensive commentaries set out under rule 3.1-2 of the Code which assist in defining the scope and application of the Code’s general competency requirements.
Cultural Competency and the Trauma-Informed Lawyer
A lawyer should take a trauma informed approach to client services.
A trauma-informed approach assumes that an individual is more likely than not to have a history of trauma. A trauma-Informed approach recognizes the presence of trauma symptoms and acknowledges the role trauma may play in an individual’s life.
A trauma-informed approach changes organizational culture to emphasize respecting and appropriately responding to the effects of trauma at all levels. It requires a system to make a paradigm shift from asking, “What is wrong with this person?” to “What has happened to this person?”
The intention of a trauma-informed approach is not to treat symptoms or issues related to trauma, but rather to provide legal services in a way that is accessible and appropriate to those who may have or continue to experience various and often intersecting forms of trauma, such as, sexual, physical, emotional, and racial trauma.
When a client has experienced trauma, their story or information might be shared in a non-linear way. This might otherwise be mistaken as a lack of credibility.
When legal services procedures do not use a trauma-informed approach, the possibility of triggering or exacerbating trauma symptoms and re-traumatizing clients increases.
Myrna McCallum, The Trauma InFormed Lawyer. Podcast. https://www.myrnamccallum.co/podcast
7See rule 3.1-1(e) of the Code.
8Code of Conduct 3.6-1 and Commentary 1-9.
9See Code at 3.1-1, 3.1-2 and 3.2-1 for further information.
A best practice is to ask the client what their communication preference is and to document what the client advises.
See Code at 7.2-1 and Commentary  which informs that a lawyer has some discretion regarding the timeliness of their communication with third parties however, the public interest demands that matters entrusted to a lawyer be dealt with effectively and expeditiously. The lawyer who behaves otherwise does a disservice to the client, and neglect of the rule will impair the ability of lawyers to perform their function properly.
10Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanor toward other legal practitioners or the parties. The presence of personal animosity between legal practitioners involved in a matter may cause their judgment to be clouded by emotional factors and hinder the proper resolution of the matter. Personal remarks or personally abusive tactics interfere with the orderly administration of justice and have no place in our legal system.
See also 7.2-4 through 7.2-7.2-6A and commentaries.
11Code of Conduct 3.6-1 Commentary (7)(g) and the Nova Scotia Human Rights Act s. 3(l).
Accommodation might be achieved, for example, by using plain language in your client communications; training and instructing staff on how to be attuned to clients’ needs; and authentically interpreting clients’ signals – recognizing that clients do not all communicate or signal their needs in the same way.
Example #1: If a lawyer’s office is not physically accessible to a client who cannot navigate stairs, the lawyer should find alternate ways to provide their services to the client such as accommodating a meeting in another accessible private space.
Example #2: Clients living with disabilities, whether they be physical, intellectual or mental health, may require a support person. A support person can be a paid personal support worker (PSW), a volunteer, a family member, or a friend.
A lawyer should always look at and speak directly to their client and not the support person, even if the client is communicating through the support person.
Approved by Council on November 22, 2013