Analysis of a Ethics Exam Short answer question

Let’s start with the Golden Rule. It isn’t “do unto others as you would have then do unto you”, rather it’s about how many articles to cite along with your answer. When answering a question, cite one article; if you must, cite two; but never cite three or more.

On your Ethics Exam, for the short-answer questions (or long answer questions, however you want to call them), you are normally asked to answer the question, explain your answer, and then justify it (expliquer et motiver votre réponse). Don’t be deceived by the large number of lines which they provide for you to answer the question. You need to get to the point quickly. Your answer should start with a yes or a no, then be followed by a one sentence simple explanation (which try to copy as much as possible from the wording of the law itself), and then the relevant article (or if you must two articles). I should add that past exams often don’t ask for the answer to be explained, but current exams do, so start practicing! Also, don’t be afraid of blank space. If you answer the question right, there should be lots of it.

The golden rule: Cite one article; if you must, cite two; but never cite three or more.

The Ethics Exam of the Quebec Bar is about taking risks. You need to take a position in your answers and stick to it. If you are not sure between two answers, you can’t answer in the law school style where you include enough of both to scrape half marks either way. This simply doesn’t work for the bar exam. If you straddle the answer or if you try to throw something in to explain yourself a bit more, expect to get zero on the question. The Quebec Bar doesn’t believe in partial marks, so you need to pick one of your options and stick to it. It’s your best chance to get your points. More often than not, if you give too much, you get zero on the question.

So, let’s take a question of conflicts of interests as an example. You get a whole fact pattern which describes how a lawyer represented a large institutional client and concurrently also represented an individual client in another matter in two distinct civil matters. Thereafter, both of these clients are sued in a commercial matter and the lawyer proposes a joint representation mandate. The mandate letter for the joint representation specifies that the individual client agrees that the lawyer can continue represent the institutional client were there to be a conflict which arises between both clients. During the course of the defence, the two defendants start having divergent interests and intend to cross-claim against one another. The lawyer advises that he will only continue onwards representing the institutional client and he intends to rely on some facts he garnered in the context of both civil mandates for the cross-claim. Can the lawyer in fact continue to act for the institutional client?

At first glance, the answer to the question appears to be that the lawyer can continue to act for the institutional client since there is a waiver. However, in fact, the lawyer cannot since he will be using confidential information from a previous mandate against a previous client.

Putting this all together, we get the answer:

No, the lawyer cannot continue acting for the institutional client as a lawyer must not accept a mandate if he has reason to believe that doing so entails the communication or use of confidential information concerning another client, which is the case at hand. (64 Code of Professional Conduct of Lawyers)