Instructions Specific to This Exam

1. This examination contains one question worth a total of 100 marks.

2. You will be assessed primarily on your knowledge of the Federation of Law Societies of Canada Model Code of Professional Conduct, the relevant assigned cases and other materials identified in the syllabus, together with your ability to recognize professional-responsibility issues, identify the lawyer’s competing obligations and explain how those obligations should be discharged in practice.

3. No marks are awarded for merely reproducing or summarizing the facts. Your answer should identify the professional issue, state the governing rule or principle, apply it to the facts and provide a reasoned conclusion.

4. For purposes of this examination, apply the Model Code as the principal professional-conduct framework. Do not discuss variations among provincial or territorial codes unless the question expressly requires you to do so.

5. Do not provide a general essay on legal ethics. Address the issues reasonably raised by the facts and the practical steps the lawyers should take.

6. Full case citations are not required for assigned authorities. Where relevant, identify the Model Code rule, case or professional principle with sufficient precision to demonstrate knowledge of the governing law.

7. You are asked to prepare a memorandum of law. You do not need to spend examination time constructing formal memorandum headings such as “To,” “From,” “Date” or “Re.” Marks are awarded for substantive analysis.

8. In determining whether a lawyer-client relationship exists, do not assume that a signed retainer agreement or payment of a fee is essential. Consider the communications between the parties, the nature of the advice sought and given and the reasonable expectations created by the lawyer’s conduct.

9. Distinguish carefully between:

   • the ethical duty of confidentiality;

   • solicitor-client privilege;

   • information that may be shared among joint clients;

   • duties owed to former clients; and

   • the limited circumstances in which confidential information may lawfully be disclosed.

10. Where a lawyer acts for an organization, identify who the client is. The interests of directors, officers, employees and shareholders are not automatically identical to the interests of the organization.

11. In addressing conflicts, consider both:

• • duties of loyalty owed to current clients; and

  • the continuing protection of confidential information received from former clients.

Do not assume that an advance conflict waiver resolves every later conflict.

12. In addressing advocacy, distinguish legitimate witness preparation and forceful representation from conduct that would knowingly mislead a tribunal, present false evidence or assist a client in dishonesty or fraud.

13. In addressing negotiation, distinguish legitimate bargaining and the withholding of information that a lawyer is not legally required to volunteer from an affirmative statement that is false or materially misleading.

14. Where withdrawal is considered, address both whether withdrawal is permitted or required and how the lawyer must withdraw without unnecessarily prejudicing the client or improperly revealing confidential information.

15. Do not address the substantive law governing medical-device regulation, product liability, securities law, criminal liability, civil discovery or damages for professional negligence. Assume that any regulator or tribunal mentioned below has lawful jurisdiction over the underlying proceeding.

16. Write a clear and organized answer in complete sentences.

QUESTION

FACTS

Novaris Infusion Systems Inc. (“Novaris”) is a Canadian medical-technology company that manufactures computerized infusion pumps used in hospitals and by patients receiving medication at home.

Its newest product is the NexaOne Pump.

The pump automatically adjusts medication delivery using embedded software.

Novaris markets the NexaOne throughout Canada.

In January 2026, Health Canada contacted Novaris after receiving reports that several pumps had unexpectedly increased medication delivery following a software update.

No recall had yet been ordered.

Novaris’s board was concerned that the issue could lead to:

• regulatory proceedings;

• civil claims;

• significant reputational damage; and

• possible scrutiny of the information Novaris had provided during the product-approval process.

The day before the board retained outside counsel, Novaris’s chief executive officer, Callum Breen, telephoned Leonie Faulk, a litigation partner at Kershaw & Baird LLP (“K&B”).

Callum and Leonie had met several times at industry events.

Callum began the call by saying:

“Before the company brings anyone in, I need personal advice. I need to know where I stand if this becomes about me.”

Leonie responded:

“I have not opened a file or completed a conflict check, so I cannot formally confirm a retainer yet. But tell me what happened and I can at least help you understand what you should be worried about.”

The call lasted approximately 55 minutes.

Callum told Leonie that, during development of the NexaOne, engineers had reported several unexpected medication-delivery events.

He said he had become concerned that:

“the safety people were letting statistically meaningless anomalies derail the launch.”

He then said:

“I told the team to clean up the submission package. There were a few ugly results I did not want going to the regulator unless they were actually significant.”

Callum asked:

“If somebody finds those emails, am I personally exposed?”

Leonie told him that she could not give a definitive answer until she reviewed the documents but advised:

“Do not delete anything. Do not tell anyone to change the record. And before you speak to the regulator, you should have counsel.”

Callum thanked her and said:

“That is exactly why I called you. Keep this between us.”

Leonie replied:

“Of course.”

No engagement letter was signed.

No invoice was issued.

The following morning, Novaris’s board retained K&B to represent the company in connection with:

• the Health Canada inquiry;

• threatened civil claims; and

• an internal investigation into the NexaOne approval process.

The board chair, Mireille Dastur, also asked K&B to represent Callum personally.

Mireille said:

“Right now the company and Callum want the same thing. We need one team, not three sets of lawyers.”

Leonie did not tell the board what Callum had said during the previous day’s call.

K&B prepared a joint engagement letter.

It stated:

“Kershaw & Baird LLP represents Novaris Infusion Systems Inc. and Callum Breen jointly in connection with the NexaOne regulatory inquiry and related matters.”

The letter further stated:

“Information material to the joint representation may be shared among the joint clients and neither joint client should expect information provided to K&B in the joint matter to be withheld from the other.”

The letter also provided:

“If a conflict subsequently arises, K&B may withdraw from representing one or both clients. Each client consents in advance to K&B continuing to act for Novaris if K&B determines that continued representation is professionally permissible.”

Callum signed the letter.

No lawyer from K&B advised him to obtain independent legal advice concerning the joint retainer or the advance conflict clause.

When Callum asked Leonie whether he needed another lawyer to review it, she said:

“You are free to get one, but this is a standard joint-representation letter and I do not see a reason to complicate things right now.”

The internal investigation began immediately.

K&B associate Tobias Wren interviewed a Novaris software engineer, Kara Vell.

Before the interview Kara asked:

“Are you my lawyer too, or are you only here for Novaris?”

Tobias replied:

“We are all trying to get to the bottom of the same problem. This is a confidential internal investigation. You can speak freely.”

He did not expressly tell Kara that K&B represented Novaris rather than her personally.

Kara then said:

“I changed one of the safety tables before it was sent to Health Canada. Callum told me the anomalous cases were misleading and should come out. I did it because I thought refusing would end my career.”

Kara also disclosed that she had retained a personal copy of the original dataset because:

“I was afraid someone would eventually blame me.”

At the end of the interview she asked:

“You are not going to let them fire me over this, right?”

Tobias answered:

“I cannot promise what the company will do, but I will make sure the situation is handled properly.”

Kara left believing that Tobias had been acting at least partly in her interests.

Tobias believed he had interviewed her solely as counsel for Novaris.

Several days later, K&B obtained copies of Novaris emails from the company’s servers.

One email from Callum to Kara stated:

“Cases 18–26 are noise. Remove them from the regulator package. We cannot let this launch get killed by statistical junk.”

Another stated:

“Do not turn this into a board issue. I am making the call.”

An internal technical report also showed that several of the removed incidents had involved substantial medication overdoses during testing.

Tobias prepared a report concluding that there was a serious possibility that Novaris’s regulatory submission had been materially incomplete.

Leonie met privately with Callum.

She showed him the emails.

Callum said:

“You know what I meant. I was not telling anyone to deceive the regulator. I was making a scientific judgment.”

Leonie reminded him of what he had told her during their first telephone call.

Callum immediately said:

“That conversation was personal. You cannot use that against me or tell the board about it.”

He instructed her:

“The board gets the company emails. It does not get anything I told you privately before there was a Novaris retainer.”

Leonie then met with Mireille.

Without disclosing Callum’s earlier personal statements, she explained that the corporate records raised serious concerns about senior-management involvement.

Mireille responded:

“Then we need to protect the company. If Callum acted improperly, that becomes his problem.”

She instructed K&B to advise the board on:

• suspending Callum;

• reporting the document issue to Health Canada; and

• preserving possible claims by Novaris against him.

Leonie told Mireille that K&B might have a conflict because it also represented Callum.

Mireille responded:

“He already signed the waiver. Keep representing the company. If he needs his own lawyer now, that is his problem.”

K&B’s managing partner, Gerard Kersey, became involved.

Novaris was one of the firm’s largest clients.

Gerard told Leonie:

“This file will generate well over a million dollars in fees. Do not surrender the company because the CEO suddenly has a problem. The engagement letter was written for exactly this situation.”

Leonie said she was concerned that Callum had provided personal confidential information before the joint retainer.

Gerard replied:

“There was no signed retainer and he never paid us. The corporation is the real client that matters.”

K&B did not immediately withdraw from either representation.

Two days later, Novaris’s board decided in principle to disclose the omitted data to Health Canada and issue a voluntary software update.

Before the board meeting ended, Callum asked Leonie to speak privately.

He was visibly angry.

He said:

“They are going to destroy me to save themselves.”

Callum retained administrator credentials that allowed him to interrupt remote distribution of the NexaOne safety update.

He told Leonie:

“If they suspend me tomorrow, I am cancelling the update before I leave. The old software can stay out there for a few days. Maybe a few patients end up in an emergency room. Then the board can explain why firing me was such a great idea.”

Leonie responded:

“You cannot do that.”

Callum said:

“I am not asking for advice. I am telling my lawyer something in confidence. You cannot repeat it.”

Leonie believed Callum was serious.

The update was scheduled to begin at 8:00 a.m. the following morning.

Approximately 14,000 NexaOne pumps remained in active use.

Leonie knew that medication-delivery errors could cause serious bodily injury and, in an extreme case, death.

Later that evening, Novaris disabled Callum’s administrator credentials.

Callum had not been told in advance.

The following week, the board formally suspended him.

It instructed K&B to continue acting for Novaris.

Callum retained independent counsel and demanded that K&B immediately stop acting for the company.

His new lawyer wrote:

“K&B obtained highly confidential information from Mr. Breen personally before the corporate retainer and subsequently represented him in the very matter in which Novaris now seeks to blame him. The firm cannot simply switch sides.”

Gerard maintained that the advance consent clause allowed K&B to remain.

The firm continued acting for Novaris while the issue remained unresolved.

Health Canada then commenced a formal administrative proceeding concerning the NexaOne disclosures.

Novaris intended to contest any suggestion that the company had deliberately concealed safety information.

Mireille told Leonie:

“Our position is that whatever happened was Callum’s personal decision. The company did not authorize it.”

Novaris’s vice-president of regulatory affairs, Jessa Nair, was expected to provide an affidavit.

Jessa had been copied on one of Callum’s emails concerning removal of the test incidents.

During K&B’s internal investigation, she had told Tobias:

“I understood Callum wanted those incidents out because he did not want Health Canada asking questions before launch.”

When shown a draft affidavit several weeks later, Jessa became nervous.

She told Leonie:

“I do not want to say I knew the regulator was being misled. I have a family and a career.”

Mireille then proposed the following statement for Jessa’s affidavit:

“Before K&B’s internal investigation, I was unaware that any member of Novaris senior management had directed the removal of safety information from material submitted to Health Canada.”

Leonie told Mireille that the statement was inconsistent with Jessa’s earlier interview and with the email record.

Mireille responded:

“Jessa did not know Callum thought the information was legally required. The sentence is defensible if you read it carefully.”

Jessa later told Leonie privately:

“If you need me to swear it, I will. I will just say I do not remember the earlier conversation.”

Mireille instructed K&B to finalize the affidavit.

She said:

“Do not turn an ambiguous memory issue into an admission of corporate misconduct.”

At approximately the same time, Novaris entered settlement discussions with a group of NexaOne users.

No court order or procedural rule then required Novaris to disclose particular documents or adverse-event information during the voluntary negotiations.

Counsel for the users, Damon Krell, asked Leonie directly:

“Since commercial launch, has Novaris identified any additional medically documented overdose event associated with the software issue?”

Leonie knew that Novaris’s records contained 11 post-launch incidents involving hospital treatment.

The company had not yet determined whether every incident had been caused by the software defect.

Mireille instructed Leonie:

“Tell him we have no confirmed additional cases. That is technically true because our causation review is not finished.”

The internal incident reports themselves described each event as:

“probable NexaOne delivery malfunction.”

Mireille continued:

“We do not have to volunteer our whole file in a settlement discussion. That is what negotiation is.”

Leonie had not yet answered Damon’s question.

Several days later, Health Canada scheduled its principal hearing for nine days away.

Leonie told the board that K&B might have to withdraw if Novaris insisted upon using Jessa’s proposed affidavit.

Mireille responded:

“If you withdraw now, you will cause enormous prejudice. You have handled this investigation for months. No new law firm can learn the record in nine days.”

She also stated:

“We are not asking you to lie. We are asking you to advocate.”

Gerard again urged Leonie to remain.

He said:

“Do not create a professional-conduct crisis where there does not need to be one. If the tribunal dislikes the affidavit, opposing counsel can cross-examine on it.”

The board also instructed K&B to prepare a public statement for release after the hearing.

The draft stated:

“Novaris has determined that any improper exclusion of test information was the unauthorized conduct of its former chief executive officer.”

Mireille told Leonie:

“You know from your first conversation with Callum that he was worried about those missing results. That makes the statement even safer. If a reporter asks whether Callum admitted knowing what he was doing, you can confirm it.”

Leonie said:

“That first conversation may be confidential.”

Mireille replied:

“He was calling you about a Novaris problem. There was no retainer. We are the client now.”

Kara also learned that Novaris intended to dismiss her.

She wrote to Tobias:

“You told me the investigation was confidential and that you would make sure this was handled properly. If you were never my lawyer, you should have said so before I admitted what I did.”

K&B has now requested urgent internal ethics advice.

The firm wants to know:

• whether it may continue representing Novaris;

• what, if anything, it may disclose about Callum’s communications;

• how it should respond to Callum’s threat concerning the software update;

• whether it may use Jessa’s affidavit;

• how Leonie may respond in the settlement negotiations;

• whether withdrawal is permitted or required; and

• whether its dealings with Kara created additional professional obligations.

For purposes of this examination, assume that no statute or court order independently compels K&B to disclose Callum’s private communications or Kara’s interview.

QUESTION

The senior partner responsible for professional standards at Kershaw & Baird LLP asks you to prepare a brief but comprehensive memorandum advising the firm on the significant professional-responsibility issues arising from this sequence of events.

Your memorandum should identify who K&B represented at the relevant stages, assess the confidentiality and conflict issues affecting the firm, explain the professional obligations arising from its representation of an organization and its dealings with individual constituents, and advise how the lawyers should respond to the threatened patient harm, the proposed affidavit, the settlement discussion and the possibility of withdrawal.

Where the firm’s duties to Novaris, Callum, Kara, the tribunal or the administration of justice may conflict, identify the source and priority of those obligations and the practical steps the lawyers should take.

100 MARKS