The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, we’ve listed the ruling below but it can also be found in our Ethics Rulings Database.
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Date: December 6, 2018
Cite as: 2018 SKLSPC 10
Classification: Undertakings and Trust Conditions, Rule 7.2-11
Practice Area: Family Law
Ethics Committee Ruling:
This was a Request for Ruling by Lawyer X. Lawyer X received disclosure on trust conditions from Lawyer Y. Lawyer X was concerned with the trust conditions for the reasons as follows:
1. They purport to place trust conditions retroactively on documents received in the past;
2. They place trust conditions on material from court services;
3. They place trust conditions on documents filed with the court; and
4. They purport to attach trust conditions to all disclosure which may be received in the future.
The Ethics Committee reviewed the trust conditions and determined that while it is inappropriate to impose trust conditions on documents provided in the past, Lawyer Y has revised their trust condition template letter and rectified this issue. Lawyer Y does have a duty to draft clear and unambiguous trust conditions. In this instance, the Committee did not find there were any other issues with the drafting of Lawyer Y’s trust conditions. If Lawyer X does not wish to accept the trust conditions, they can return the documents and either request an amendment or make the argument to the Court about why they have not received disclosure and allow the court to decide. In the event Lawyer X already has court documents that Lawyer Y provided by way of disclosure, Lawyer X should return the disclosure to Lawyer Y and advise that they already have their own copy and therefore they do not need them.
With respect to imposing trust conditions on future disclosure, the Ethics Committee noted that these are used regularly in the court context in both criminal proceedings and family services proceedings as they allow for timely disclosure. Lawyers may exchange disclosure when they have it and not return to the office to send a cover letter with trust conditions. To create a ruling that prohibits this would put an onerous obligation on prosecutors to the detriment of the accused.