By Peter Giblett, peter@weareinvictus.legal

“Sharp practice” refers to conduct by any professional in a wide range of professions that, while it may not amount to outright dishonesty or professional misconduct, means they take unfair advantage of a client, the public in general, a procedural rule, a technicality, or any imbalance of knowledge or power. It exists for many professions, but is of special concern in the legal professions.

The definition is, "use of a clever, cunning, or underhanded way of behaving that is technically legal but dishonest, unethical, or in preformed bad faith. It generally involves tactics that are overly aggressive by the professional, is misleading and by implication deceptive, oppressive, or inconsistent with the spirit of their professional obligations.

The legal profession 

The concept is important because legal practice is not simply a game in which anything is technically permissible, ethics of the practitioner matters.

Legal professionals have duties of honesty, fairness, civility, candour, and loyalty to their clients, while also owing obligations to the administration of justice in general and, in appropriate circumstances, to opposing parties and the tribunal or court deciding the matter.

Here are some examples of what sharp practice can look like in the legal industry:

• Exploiting an obvious mistake by an opposing party rather than addressing it fairly for example asking for default judgement because a party failed to show up at a settlement conference rather than explore why they did not.
• Deliberately creating confusion about a deadline, hearing, document, or procedural requirement;
• Using procedural rules primarily to ambush or disadvantage the other side - telling a tenant "you will be evicted" rather than explore other options.
• Making representations that are technically accurate but deliberately designed to create a false impression;
• Threatening consequences that the professional knows are unlikely or unavailable to the court of tribunal.
• Unnecessarily escalating costs or provoking additional proceedings to pressure the opposing party into submission.
• Taking advantage of an unrepresented person who clearly does not understand either the law of the legal process.
• Concealing information or circumstances, especially that which will assist the opposing party, where professional obligations require disclosure.
• Making excessive or disproportionate demands simply because the other side lacks the resources to resist them.

Exploiting an obvious mistake

At first glance it would seen that a legal professional should exploit any obvious mistake in order to favour their client's position. This seems logical, but it is not always appropriate. When the opposing party is represented, it is assumed that their legal representative will spot the mistake and correct it. When they are unrepresented, the exploiting it is inappropriate and unprofessional. Asking to penalise the opposing party for, what may turn out to be an error made by the court, is unethical.

Hard Fought Legal Position

Not every hard-fought legal position is sharp practice. Strong advocacy is both legitimate and desirable. At Invictus Legal LLP our tagline is "fighting for you" for a reason. Strong representation is often seen as being dominant in all circumstances and not backing down. Sometimes the strongest advocate is the one who makes the point silently or with minimal fuss, almost as if the point never needed to be made.

The distinction is often whether the tactic is being used to advance a proper legal position or to obtain an unfair procedural or practical advantage in the matter. One example I am aware of is the landlord representative in an LTB hearing asking for a meeting with an unrepresented client, the telling them "you know you will have to move out don't you?" often for a minor infraction that has already been resolved.

The impact on clients of sharp practice can ultimately hurt the very client it is intended to benefit, as they get known for having over officious representatives.

Aggressive Tactics

Clients may initially believe that an aggressive tactic demonstrates that their representative is “fighting hard” for them. However, when the conduct crosses professional boundaries, the consequences can include:

• Loss of credibility — Judges, tribunals, and opposing counsel may become less receptive to the representative's submissions.
• Increased legal costs — Procedural gamesmanship can generate unnecessary motions, correspondence, hearings, and disputes.
• Delay — Aggressive procedural tactics frequently cause litigation to become longer and more complicated.

Adverse procedural consequences — A court or tribunal may respond to improper conduct with costs consequences, procedural orders, or other remedies.

Lawyer of Paralegal Credibility

Action that are deemed as "Sharp Practice" can cause damage to the client's case — A representative's credibility can become intertwined with the client's position. If the tribunal concludes that the conduct was misleading or unreasonable, it may scrutinize the underlying case more closely.

There is a clear distinction between an entrenched attitude taken by a client and that of their legal professional:

1. Professional discipline — Where sharp practice crosses the line into conduct that is considered contrary to professional rules, the practitioner may face a complaint or disciplinary consequences by the Law Society of Ontario.
2. Breakdown of settlement opportunities — Litigation conducted unnecessarily aggressively can destroy opportunities for reasonable negotiation.

Confidence in the Administration of Justice

The deeper ethical principle is loss of confidence in the administration of justice, where, in Ontario, the Law Society becomes very concerned. The fundamental distinction is between zealous advocacy, which is to be encouraged and unfair advocacy which should not.

Any lawyer or paralegal should be prepared to advance their client's interests forcefully, to challenge weak evidence, to rely upon procedural rights available to their client, and take advantage of legally available positions.

Professional advocacy does not give the representative permission to mislead, intimidate, ambush, manipulate, or exploit their opponents. In practical terms, a good test is:

“Is this something the professional is doing because it is legitimately necessary to advance their client's legal position, or because they know it will unfairly disadvantage the other side?”

That distinction is particularly important in Ontario practice, where professional obligations require legal professionals to balance zealous representation of the client with duties to the administration of justice and professional integrity.

For a client, the best representative is therefore not necessarily the one who is most aggressive. It is the one who can be forceful without being reckless, strategic without being deceptive, and determined without compromising professional ethics.