Duhaime's Law Dictionary


Sharp Practice Definition:

Prohibited conduct by a licensed lawyer in taking, or attempting to take advantage of a slip or overlooked technical matter by the other side to litigation, and to agree to reasonable requests which either prejudice his client or the interests of justice.

Besides the duty which a lawyer owes to the court and his client, she or he is bound to treat the opposite party and fellow lawyers with civility, fairness and propriety. Failing to do so is sharp practice.

Obviously from the above, it is challenging to pin down a definition of sharp practice as it is subject to both a wide and a more limited definition by those law societies - and they are legion - that prohibit sharp practice.

One standard is to include in the prohibited conduct all forms of professional bullying including, but not necessarily limited to, any use of tactics that though falling short of a breach of ethical duties, is mean-spirited, deceitful or grossly discourteous to the other side or an overly aggressive litigation strategy: Rambo-style.1 Examples:

  • To intentionally embarrass a another lawyer;
  • To file a related claim and to not promptly advise the other lawyer;
  • Moving to default judgment without advising the other side; or
  • Deliberately and deceitfully failing to answer correspondence.

In Dondi (1988), the United States District Court (Texas) wrote:

"With alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers. Judges and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction. Our system of justice can ill-afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive."

In Canada, the more limited definition is favoured, aimed more at taking unfair advantage of slips, irregularities or mistakes on the part of the other side, including other lawyers. In Re Blackhouse (1889), the Ontario  High Court wrote:

"To build up a client’s case on slips of an opponent, is not the duty of a professional man."

An example extracted from Canada professional conduct guidelines is this from Law Society of Upper Canada (Ontario) Rules of Professional Conduct, §6.03(3):

"A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights."

In Xpress View, Justice Nordheimer wrote:

"Counsel have obligations to deal with each other fairly and not to take advantage of missteps by opposing counsel. This requirement is reflected in the (Ontario) Rules of Professional Conduct: The lawyer should avoid sharp practice, and should not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of the client’s rights."

In a labour relations case (Construction Workers Local 53), one Canadian arbitrator wrote:

"It is generally considered to be sharp practice if not unethical for one party to take advantage of a clear oversight by the opposite party in a proceeding. This rule applies with even greater force to an oversight made by the tribunal before which the parties appear."

REFERENCES:

  • Construction Workers Local 53 v. Fahringer Mechanical Contractors Limited, 2001 CanLII 3504 (ON L.R.B.)
  • Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284
  • Law Society of Upper Canada, Rules of Professional Conduct. See also the Law Society of British Columbia, Professional Conduct Handbook, Chapter 1, §4(3): "A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter. A lawyer should accede to reasonable requests which do not prejudice the rights of the client or the interests of justice".
  • Re Backhouse v. Bright (1889), 13 P.R. 117 (Ont. H.C.J.)
  • Xpress View Inc. v. Daco Manufacturing Ltd., 2002), 36 C.C.E.L. (3d) 78 (Ont. S.C.)
  • Wooley, A., Does Civility Matter?, Osgoode Hall Law Journal, Volume 44, 2008, page 175 (note 1)

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