In British Columbia, a lawyer's duty of candour to the court is a core ethical obligation rooted in common law and explicitly codified in the Code of Professional Conduct for British Columbia (the "BC Code"), which is given force through the statutory framework of the Legal Profession Act. The Act itself establishes the regulatory authority for these professional standards.
Duty of Candour to the Court
The duty of candour requires a lawyer to act with honesty and fairness, and not to deceive or knowingly or recklessly mislead the court or tribunal. This is considered the lawyer's paramount duty, overriding their duty to the client if the two conflict.
Specific expressions of this duty under the BC Code include:
Not offering false evidence or misstating facts or law.
Not presenting or relying upon a false or deceptive affidavit.
Disclosing any binding authority that the lawyer considers to be directly on point, even if it harms their client's case.
In ex parte proceedings (where the opposing side is not present), the lawyer must act with utmost good faith and inform the tribunal of all material facts, including adverse ones, to ensure an informed decision is made.
Statutory Obligations under the Legal Profession Act
The Legal Profession Act (the "Act") is the provincial statute that governs the legal profession in BC. Its primary object and duty is to uphold and protect the public interest in the administration of justice. The Act achieves this by:
Ensuring the independence, integrity, honour, and competence of lawyers.
Establishing standards for professional responsibility and competence.
Regulating the practice of law and providing for a robust disciplinary process for misconduct.
The Act makes the BC Code the primary expression of these professional standards, meaning that the ethical duties outlined in the Code, including the duty of candour, are effectively statutory obligations that lawyers must meet to maintain their good standing and ability to practice. A breach of the Code may lead to disciplinary action by the Law Society.
Interplay
The duty of candour to the court is a specific, fundamental ethical principle that is enforced through the general statutory framework established by the Legal Profession Act. The Act provides the legal authority for the Law Society of British Columbia to require lawyers to adhere to the BC Code, which in turn mandates candour to the court.
Therefore, the duty of candour is not separate from statutory obligations; rather, it is a core professional obligation that derives its enforceability from the powers granted to the Law Society under the Act. Failure to be candid with the court constitutes professional misconduct and can result in disciplinary measures as provided for under the Act.
