Liability of Lawyers

Overview

The relationship between a lawyer and a client in Quebec is governed by the contractual regime of the Civil Code of Quebec (CCQ). A client who suffers injury as a result of the lawyer's fault must proceed under the rules of contractual liability (responsabilite contractuelle) established by art. 1458 CCQ. The lawyer owes duties of competence, advice, diligence, loyalty, and professional secrecy (secret professionnel). These duties are, in principle, obligations of means (obligations de moyens), assessed against the standard of the reasonably prudent and diligent lawyer. In defined circumstances, however, the obligation rises to one of result (obligation de resultat), particularly regarding prescriptive deadlines.

Beyond the client relationship, the lawyer's daily professional acts, including the drafting of pleadings and the conduct of litigation, may cause harm to third parties. Extra-contractual liability (responsabilite civile extracontractuelle) under art. 1457 CCQ governs these situations. The lawyer benefits from a qualified immunity when acting within the scope of advocacy, but that protection has limits, especially where statements are irrelevant, reckless, or malicious, or where proceedings are abusive.

Learning Objectives

• Characterise the nature of the lawyer-client relationship under Quebec civil law and identify the applicable liability regime.
• Distinguish between the lawyer's obligation of means (obligation de moyens) and obligation of result (obligation de resultat), and identify the circumstances in which each applies.
• Apply the three components of the duty to advise (devoir de conseil): to inform, to explain, and to counsel.
• Identify the standard of care applicable to the conduct of proceedings and trial strategy.
• Explain how causation operates in lawyer liability through the mechanism of loss of chance (perte de chance).
• Evaluate the conditions under which a lawyer may incur extra-contractual liability toward third parties for defamatory statements or abusive proceedings.

Key Concepts and Definitions

• Contractual liability (responsabilite contractuelle): the obligation to repair injury resulting from the failure to perform a contractual obligation (art. 1458 CCQ).
• Extra-contractual liability (responsabilite civile extracontractuelle): the obligation to repair injury caused to a person with whom no contract exists (art. 1457 CCQ).
• Mandate (mandat): a contract by which a person, the mandatary, is empowered to represent the mandator in the performance of a juridical act with a third person (art. 2130 CCQ).
• Obligation of means (obligation de moyens): the debtor must act with prudence and diligence but does not guarantee a particular outcome.
• Obligation of result (obligation de resultat): the debtor must achieve a specific result; failure to do so constitutes a fault.
• Duty to advise (devoir de conseil): the lawyer's obligation to inform, explain, and counsel the client so the client can make an informed decision.
• Professional secrecy (secret professionnel): the lawyer's duty to maintain the confidentiality of all information obtained in the course of the professional relationship, grounded in art. 9 of the Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne).
• Loss of chance (perte de chance): the compensable head of damage that arises when a lawyer's fault deprives the client of the opportunity to have a right recognised or a claim succeed.
• Abuse of process (abus de procedure): the use of judicial proceedings for purposes foreign to their intended function, or in a manner that is manifestly unreasonable.

Nature of the Lawyer-Client Relationship

The relationship between a lawyer and a client is contractual. Art. 1458 CCQ obliges the client to proceed exclusively under the contractual regime when seeking reparation from the lawyer. The precise characterisation of the contract, whether mandate (mandat) or contract for services (contrat de service ou d'entreprise), has been debated. Some authors classify the lawyer as the client's mandatary on the basis that all the elements of art. 2130 CCQ are present. This qualification is accurate when representation is involved, but it does not capture every facet of the lawyer's work, because representation (representation) is of the essence of the mandate (art. 2130 CCQ), and this component is not always present. When the lawyer drafts a will, provides a legal opinion, or negotiates on behalf of a client without concluding a juridical act, the relationship more closely resembles a contract for services.

In practice, the distinction has limited consequences between the parties. Whether the contract is characterised as a mandate or a contract for services, the obligational burden on the lawyer is substantially the same. The mandatary must act with prudence and diligence (art. 2138 CCQ), and the service provider owes diligent and competent performance. Both regimes require loyalty and good faith (bonne foi).

Personal Liability of the Lawyer to the Client

Intensity of the Obligation

The lawyer is, as a general rule, bound by an obligation of means (obligation de moyens). The lawyer must provide services that are attentive, conscientious, and consistent with the rules of the art. The standard of care is that of the reasonably prudent and diligent lawyer, recalling the concept of the reasonable person (personne raisonnable). As the Superior Court has expressed, the lawyer must use particular knowledge to protect the client, acting as a diligent parent would to protect the person being assisted and counselled. Art. 2138 CCQ reinforces this standard by requiring that the mandatary act with prudence and diligence.

In certain defined circumstances, the case law imposes an obligation of result (obligation de resultat). The most firmly established example concerns prescriptive deadlines (delais de prescription). The failure to respect a prescriptive deadline constitutes a contractual fault from which the lawyer cannot exonerate by simply pleading reasonable conduct. The result was owed: the filing had to be made in time.

Other situations may reveal a heightened or "enriched" obligation: real estate transactions where the lawyer undertakes specific verifications, or cases where the lawyer has guaranteed a particular outcome.

The Duty to Advise

The lawyer's obligation of competence (obligation de competence) divides into two branches: the duty to advise (devoir de conseil) and the duty to conduct proceedings diligently.

The duty to advise, as stated by the Supreme Court of Canada, has three components: (1) to inform, (2) to explain, and (3) to counsel. The lawyer must ensure that the client makes an informed decision, but must not decide in the client's place. This duty exists at all times and regardless of the specificity of the mandate conferred. The Code of Professional Conduct of Lawyers (Code de deontologie des avocats) specifies that the lawyer must determine the conditions, terms, and scope of the mandate with the client (art. 28 para. 1), must set out objectively the nature and scope of the problems arising from the facts brought to the lawyer's attention along with the risks inherent in the measures recommended, and must provide the client with the explanations necessary to understand and assess the professional services rendered (art. 38).

The lawyer is not required to know everything, particularly given the multiplication of legislative and regulatory norms. The lawyer must, however, be able to advise and inform the client adequately. The client's own knowledge is a factor in determining the extent of this duty. Where the mandate exceeds the lawyer's competence, the professional conduct rules require the lawyer to withdraw from the file. A lawyer who advertises specialised knowledge in a particular field raises the client's legitimate expectations, and those expectations will be treated as a circumstance of the case.

Error on a clear rule of law. When the law is clear and free from ambiguity, the lawyer must not err. Ignorance of a rule of law does not automatically constitute a fault, but depending on the circumstances it may ground a claim for reparation.

Controversial legal questions. When a rule is contested or its application to the facts is uncertain, the lawyer must inform the client of the controversy and take a position. Because the obligation is one of means, the lawyer does not guarantee that the opinion adopted is the best possible view of the law. The lawyer must, however, ground the position on reasonable legal bases, even if the reasoning is later rejected by the courts. Courts evaluating the lawyer's reasoning must place themselves at the time the position was adopted, not at the time of the judgement.

Knowledge of case law. Published decisions must be presumed known to a reasonably diligent lawyer. An unpublished decision that reversed a jurisprudential trend on which the lawyer relied may excuse the lawyer if it was genuinely unknown at the time. Today, with electronic databases, the scope of the obligation has increased, although no decision has yet determined whether the lawyer must review all published decisions or only the most significant ones. A failure to know a relevant decision is a fault, but that fault is not necessarily causal: in Quebec civil law, case law plays an important role but remains subordinate to legislation.

Foreign and comparative law. Ignorance of foreign law should not, in itself, constitute a fault. However, when newly enacted Quebec legislation has been little interpreted and was inspired by foreign sources, a reasonably prudent lawyer may be expected to consult the primary foreign materials.

Conduct of Proceedings and Trial Strategy

The lawyer holds a near-exclusive right to represent a party before the courts. With this right comes liability for inadequate pleadings, pleadings filed on the basis of incomplete records, late filings, questionable strategies, acting without a mandate, or the unnecessary summoning of a witness. The lawyer must also maintain reasonable availability. The applicable standard remains that of the normally prudent and diligent lawyer with ordinary knowledge, and the court must assess the strategy as of the time it was adopted.

A trial inevitably ends with one party's victory and the other's defeat; the losing client may be frustrated, but the lawyer's obligation is not a guarantee of result. The lawyer is at fault if the lawyer fails to bring the proper recourse against all responsible parties in time, fails to bring proceedings before the competent court, fails to appear on the day of hearing, allows an instance to perish (peremption d'instance), neglects the file, fails to file a factum, or presents inadequate evidence.

Expert evidence on standard of care. While courts traditionally did not require expert evidence to establish the standard of care applicable to a lawyer, more recent decisions have noted the absence of such evidence, particularly when the defendant practised in a specialised field.

Relevant circumstances. The level of difficulty of the file, the short time available for preparation (for example, because prescription was imminent), the client's lack of cooperation, the client's own knowledge, and the client's financial means are all relevant to the assessment.

Litigation discretion. The Quebec Court of Appeal (Cour d'appel) has recognised that the lawyer retains a margin of discretion in the conduct of proceedings. The lawyer should not be held liable for having adopted a sound strategy, or the only strategy that was realistically feasible, in light of the circumstances and information available. In certain cases, the lawyer may be exonerated by proving that the lawyer followed the client's instructions.

Abuse of rights as a limit. The Court of Appeal has also held that the obligation to adopt a sound strategy ends where the abuse of rights (abus de droit) begins. The lawyer is not liable for declining to conduct proceedings in a manner that, while conferring a strategic advantage on the client, would constitute a manifest abuse of process.

Referral to a colleague. When the context makes it impossible to continue the mandate, the lawyer commits no fault by referring the matter to a colleague or withdrawing from the file. This principle extends to non-legal advice: when the lawyer recommends that the client retain another professional or resource person, the obligation is one of means, assessed against the standard of a competent, prudent, and diligent lawyer. The lawyer cannot refer blindly and must have a reasonably informed conviction that the person recommended is competent.

Professional Secrecy

The breach of professional secrecy (secret professionnel) is both a serious disciplinary offence and a civil fault. The duty is grounded in art. 9 of the Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne). Civil case law on this subject is sparse because the resulting injury, predominantly moral damage (prejudice moral), is difficult to prove. Where the evidence supports it, compensation for material damage (prejudice materiel) and punitive damages (dommages punitifs) may be claimed under art. 49 of the Charter.

The difficulty of quantification should not deter a claim, but the injury suffered is often minimal, which discourages victims from pursuing their rights before the civil courts.

The Duty of Loyalty

The lawyer must not place personal interests before those of the client. A potential conflict of interest (conflit d'interets) must be disclosed, and the lawyer must withdraw from the file. The lawyer must not condone reprehensible conduct by the client. Representation of a client whose interests are directly opposed to those of another client of the same lawyer is prohibited unless both clients provide written consent after receiving the relevant information about the loyalty conflict. The misappropriation of funds from the trust account (compte en fiducie) constitutes an extremely reprehensible fault, both civilly and deontologically. The lawyer is obliged to reimburse the funds and may be condemned to pay moral damages if the evidence supports such an award.

Causation and Loss of Chance

When a lawyer's fault deprives the client of a right, the injured client must establish that, absent the fault, the recourse would have been granted and the right recognised. Given the inherent uncertainty about the outcome of a lost recourse, the compensable head of damage is characterised as loss of chance (perte de chance). In Laferriere c. Lawson, the Supreme Court of Canada refused to recognise the loss of chance as a compensable head of damage in medical liability. The Court did not, however, disavow the principle in the context of "juridical" loss of chance, which it described as a "classic exception."

In practice, the client can generally obtain reparation only to the extent that the client proves, on a balance of probabilities, that the initial recourse would have succeeded but for the lawyer's fault. The judge hearing the liability action thus wears a double hat: judge of the claim for reparation and judge of the merits of the original case. The court assesses the totality of the evidence and determines, on a strong probability, what the reasonable outcome of the initial recourse would have been. Where the lawyer committed a gross fault (faute lourde) or intentional fault (faute intentionnelle), courts tend to accord less scrutiny to the causal link.

Where the lawyer's negligence deprives a party of a right of appeal, the situation is unusual: the judge hearing the professional liability claim effectively sits in appeal of a decision emanating from the judge's own level of jurisdiction. The judge must nevertheless decide the case.

If the lawyer's negligence is subsequently followed by the fault of the client or of another lawyer, the causal chain may be broken, and no liability may be attributed to the first lawyer.

Appropriate Reparation

Damages are fixed according to the general principles of contractual liability. The lawyer is liable for all damages that were normally foreseeable at the time of the formation of the contract (art. 1613 CCQ). Where the lawyer's fault is gross or intentional, all damages that are an immediate and direct consequence of the fault may be recovered (art. 1607 CCQ).

The client, like any creditor, has an obligation to mitigate the injury (art. 1479 CCQ).

An alternative form of reparation has been recognised in Quebec case law. In an exceptional decision, a judge prohibited the lawyer from claiming fees from the client, holding that the prosecution of the civil liability action should never have been brought or contemplated, and that the lawyer should be sanctioned for inadequate advice. This remedy remains an exceptional measure.

Liability of the Lawyer to Third Parties

A litigator is, by the nature of the practice, frequently involved in periods of confrontation between the parties. The lawyer's acts, whether dictated by the client or not, may cause harm to the opposing party or to non-parties. The general principles of extra-contractual liability (responsabilite civile extracontractuelle) under art. 1457 CCQ apply: the lawyer must act with prudence and diligence so as not to cause injury to persons who are not the lawyer's clients, including unrepresented parties.

The Code of Professional Conduct of Lawyers requires the lawyer to adopt conduct marked by objectivity, moderation, and dignity, and to act in good faith (bonne foi) while avoiding purely dilatory proceedings brought solely to harm another.

Three principal areas of third-party liability arise in the case law: direct or indirect participation in risky or fraudulent investment schemes, defamatory acts, and abusive proceedings. The latter two are treated below.

Defamatory Acts and Statements

Litigation by nature involves the assertion of opposed positions. Written and oral exchanges may be vigorous and may contain unflattering comments. Situations such as actions for nullity on the ground of fraud (dol), actions in revocation (actions pauliennes), and seizures before judgement (saisies avant jugement) routinely call into question the integrity of the opposing party.

Several decisions have borrowed from the common law the defence of qualified immunity (immunite relative) of the advocate. Under this defence, the lawyer enjoys a qualified immunity when addressing the court or drafting judicial proceedings in the execution of professional functions. It is in the interest of justice that the lawyer be able to carry out the lawyer's role in conditions that favour a frank, direct, and at times rigorous judicial debate.

This immunity has been held inapplicable when the victim was not concerned by the proceedings.

Under civil law, the criteria for evaluating the lawyer's fault are relevance (pertinence) and plausibility (vraisemblance). A lawyer who pleads irrelevant facts, makes reckless, injurious, or malicious comments, or fails to take the precautions that a reasonably diligent lawyer would have taken is exposed to a claim for damages under general civil law principles. To escape liability, the lawyer must demonstrate the relevance of the comments and that there were reasonable grounds to believe in their veracity. The applicable test asks whether a prudent person would have honestly believed the facts alleged to be true, even if that belief resulted from an error.

The lawyer is not obliged to conduct an exhaustive investigation into every fact communicated by the client, but must take reasonable precautions to verify the accuracy of the information. Decisions have exonerated lawyers who obtained corroborating information from third parties. Good faith (bonne foi) plays a role in determining whether the conduct was unlawful: the question is whether the statements were made in good faith to advance the client's rights, or recklessly or with the intent to harm.

The client who has not disavowed the lawyer's conduct may be condemned alongside the lawyer. The client's condemnation is possible even if the lawyer is exonerated, where the client's own fault (for example, in failing to verify the facts communicated to the lawyer) is established.

Abusive and Dilatory Proceedings

The right to submit a dispute to the courts is a fundamental right. Courts therefore accord lawyers a measure of latitude when evaluating their conduct. The system may, however, be perverted. A lawyer or party who initiates a recourse or practises a seizure solely to harm another, or in a manifestly unreasonable manner, may be sued for abuse of process (abus de procedure).

The case law accepts that the claim for reparation against the opposing party may be brought within the same proceeding by way of a cross-demand (demande reconventionnelle), on the basis of the connection between the two claims and the fact that the trial judge is best positioned to determine whether the principal proceeding is abusive.

The Code of Civil Procedure (Code de procedure civile) provides tools for dealing with abusive and dilatory proceedings. Arts. 51 and following CPC allow a party to seek the dismissal of frivolous or abusive proceedings at first instance. Art. 365 CPC addresses abusive appeals. The wording of art. 51 CPC ("at any time") means that the failure to bring a motion for dismissal at the first opportunity does not bar a subsequent claim for reparation. The failure to bring such a motion in a timely manner may, however, be treated as evidence that the defendant did not regard the proceeding as abusive, or may be invoked to argue that the creditor failed to mitigate damages.

Whether arts. 51 and following CPC allow a direct condemnation of the opposing party's lawyer remains partially unresolved. In some decisions, the Court of Appeal has stated that it is not excluded, depending on the circumstances, that a lawyer may be sanctioned under these provisions. Another decision of the same court held that the provisions target only the parties to the proceeding. Where the lawyer cannot be condemned directly under these provisions, the party condemned for abuse may seek recourse against its own lawyer.

Reparation for Harm to Third Parties

The damages recoverable include the costs incurred to contest the abusive proceeding and the inconveniences caused (stress, anxiety). Certain decisions have condemned the lawyer to pay court costs personally. In L. c. G., the lawyer was condemned personally for having brought, on behalf of the client, a civil liability action that had no chance of success.

Subsequent case law has been reluctant to condemn the lawyer personally. In Young c. Young, the Supreme Court of Canada declined to condemn the lawyer to pay costs and took the opportunity to set out the applicable principles:

The fundamental principle governing costs is the indemnification of the successful litigant, not the punishment of a lawyer. A member of the legal profession may be the subject of a compensatory order for costs where the proceedings in which the lawyer acted were marked by the filing of repetitive and irrelevant documents, excessive motions, and where the lawyer acted in bad faith in encouraging such abuse and delay. (TR)

The Court of Appeal, in a subsequent matrimonial case, established that a condemnation of the lawyer to pay costs must remain an exceptional remedy. A lawyer does not have the right to present a claim known to be manifestly unfounded, known to be false, or known to have no chance of being entertained. Nor may a lawyer incite unnecessary proceedings, encourage confrontation for the purpose of earning fees, or proceed with the intent to harm the opponent. The abuse must, however, constitute something gross: a proceeding brought without a mandate, a proceeding based on facts the lawyer knows to be false, or a proceeding with no semblance of legal foundation. The fact must be manifest and indisputable, because a condemnation for costs must not serve as a rapid substitute for an action in abusive proceedings or an action in professional fault by the client.

The rationale for this high threshold is protective: lawyers must be able to carry out their mandate with confidence, and they should not be placed in a position where the fear of a personal condemnation for costs could prevent them from fulfilling the fundamental duties of their office, including the obligation to preserve the confidentiality of the mandate and to defend unpopular causes with courage.

Practice Checklist

Nature of the relationship

• Confirm whether the engagement is more properly characterised as a mandate or a contract for services; in either case, confirm the obligational framework.

Duty to advise

• Determine the scope of the mandate with the client in writing.
• Set out objectively the nature of the problems, the applicable legal rules, and the risks inherent in the recommended measures.
• Where the law is clear, ensure no error in its application; where the law is controversial, disclose the controversy and ground the position on reasonable legal bases.
• Document advice given, particularly regarding prescriptive deadlines.
• Assess whether the mandate exceeds the lawyer's competence; if so, withdraw or refer.

Conduct of proceedings

• Verify prescriptive deadlines and file all proceedings in time.
• Bring the appropriate recourse against all responsible parties before the competent court.
• Document the strategy adopted and the reasons for the choices made.
• Maintain reasonable availability throughout the file.

Professional secrecy and loyalty

• Identify and disclose any actual or potential conflict of interest.
• Maintain strict confidentiality of all information obtained in the course of the mandate.
• Do not misappropriate trust account funds.

Liability to third parties

• Verify the accuracy of facts before pleading them; take reasonable steps to corroborate the client's version.
• Ensure allegations are relevant and plausible; avoid reckless or malicious statements.
• Do not initiate or continue proceedings that are manifestly unfounded or brought solely to harm.

Causation and reparation

• When a client claims a lost right, assess the probable outcome of the original recourse on a balance of probabilities.
• Advise the client of the obligation to mitigate the injury suffered.

Glossary

• Abuse of process (abus de procedure): the use of judicial proceedings for purposes foreign to their intended function, or in an unreasonable manner; sanctioned under arts. 51 and following CPC.
• Contractual liability (responsabilite contractuelle): the obligation to repair injury resulting from a failure to perform a contractual duty (art. 1458 CCQ).
• Duty of loyalty (devoir de loyaute): the lawyer's obligation to act in the client's best interest, avoid conflicts of interest, and refrain from placing personal interests above those of the client (art. 2138 CCQ).
• Duty to advise (devoir de conseil): the lawyer's obligation to inform, explain, and counsel the client so that the client may make informed decisions.
• Extra-contractual liability (responsabilite civile extracontractuelle): the obligation to repair injury caused to a person with whom no contractual relationship exists (art. 1457 CCQ).
• Gross fault (faute lourde): recklessness, imprudence, or gross negligence (art. 1474 CCQ).
• Intentional fault (faute intentionnelle): conduct undertaken with knowledge that it will cause injury.
• Loss of chance (perte de chance): the head of damage arising when a fault deprives a person of the opportunity to have a right recognised or a claim succeed.
• Mandate (mandat): a contract by which a mandatary is empowered to represent the mandator in the performance of a juridical act (art. 2130 CCQ).
• Obligation of means (obligation de moyens): the debtor must act with prudence and diligence; failure is assessed against the standard of the reasonable person.
• Obligation of result (obligation de resultat): the debtor must achieve a defined result; failure to do so constitutes a fault regardless of diligence.
• Professional secrecy (secret professionnel): the lawyer's duty of confidentiality regarding information obtained in the professional relationship, grounded in art. 9 of the Charter of Human Rights and Freedoms.
• Qualified immunity (immunite relative): the protection afforded to the advocate when making statements in the course of judicial proceedings, subject to the requirements of relevance and plausibility.

References and Further Reading

• Civil Code of Quebec: arts. 1457, 1458, 1474, 1479, 1607, 1613, 2130, 2138 CCQ.
• Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne): arts. 9, 49.
• Code of Professional Conduct of Lawyers (Code de deontologie des avocats): arts. 28, 38.
• Code of Civil Procedure (Code de procedure civile): arts. 51 and following, 365.
• Selected case law: Laferriere c. Lawson (Supreme Court of Canada); Young c. Young (Supreme Court of Canada); L. c. G.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.