TORONTO – A submission by the OBA Trusts & Estates Section has significantly improved the new lawyers’ Rules of Professional Conduct recently adopted by the Law Society of Upper Canada.
The Law Society has announced that the new rules, which implement the Federation of Law Societies of Canada’s Model Code of Professional Conduct, will come into effect October 1, 2014.
“The OBA is pleased to have had a positive impact on the new Rules of Professional Conduct in a way that benefits lawyers, the general public, and the public interest,” said Vince De Angelis of the OBA Trusts & Estates Section.
The new rules that were initially proposed would have prohibited a lawyer from drafting a client’s will that includes a clause directing the executor to retain the lawyer’s services in the administration of the estate.
Had the draft rules been implemented, the prohibition would have required individuals to hire two different lawyers to do what one lawyer can effectively do today. The OBA’s view is that this would have significantly restricted the ability of an individual to safely communicate his or her wishes through a will to those who will later make important decisions about the estate. It would also have caused considerable inconvenience for the public, particularly in smaller centres and in rural and northern communities, where there are fewer lawyers practising.
In a submission to the Law Society, the OBA said:
In the preparation and administration of wills, clients benefit from continuity – the ability to receive advice from lawyers who are already familiar with their client’s assets, family dynamics and other background issues.
There is no indication that clients’ interests are ill-served by allowing lawyers who draft a will to also act as the estate’s solicitor.
Public policy favours a rule allowing individuals to communicate their wishes and allowing flexibility for trustees to choose different counsel where necessary or desirable.
In agreeing with the premise of the OBA’s submission, the Law Society has provided that if a will directs that the drafting lawyer’s services be retained to administer the estate, the lawyer should first advise the trustees that they can decide to retain other counsel (see new Rule 3.4-37).
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