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Facilitator's Guide - Personal Injury Case Study (The Offer of Employment)

Opening Paragraph

Bernard King was in the courtroom at 9:40 a.m. on October 8, 2018, the seventh day of trial when his client’s wife, Sandra arrived, handed him a letter, and asked when he intended to use it as evidence in support of her husband’s claim for damages.  When Bernard said he had never seen the letter before, Sandra insisted that she had given it to him when he agreed to represent her husband, Neil, in his personal injury lawsuit.  Although the letter was favourable to his client’s position, Bernard suspected that Sandra had fabricated it.  He had less than 20 minutes to decide what to do with the new evidence.
 
Objectives
  1. This case is intended for a study group discussion session on professional responsibility in Personal Injury Law.
  2. Participants will be expected to put themselves in the position of the lawyer, Bernard King in the case and to identify and analyze the legal, professional and personal challenges he faces.
  3. Participants will also be expected to develop alternatives and an action plan for resolving the issues in accordance with the lawyer’s professional obligations under the Rules of Professional Conduct.
 
Rules of Professional Conduct
  • Honesty and Candour, r. 3.2-2
  • Dishonesty, Fraud etc. by Client or Others, r. 3.2-7
  • Confidential Information, r. 3.3-1
  • Advocacy, rr. 5.1-1[3], 5.1-2(b),(e)
  • Mandatory Withdrawal, r. 3.7-7
 
Suggested Discussion Questions
Assume that you are the lawyer in this case and answer the following questions with reference to the relevant Rules of Professional Conduct:
  1. What discussion, if any, should you have with your client, Neil, about the letter?
  2. What discussion, if any, should you have with Sandra about the letter or the trial?
  3. Should you disclose the contents of the letter to the defendants’ counsel?  Why or why not?
  4. Should you rely on the letter at trial?  Why or why not?
  5. If you conclude that the letter is fabricated, yet your client insists on putting it forward, how should you proceed?