Conflict of Interest Guidelines

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From the Conflicts of Interest Toolkit released by the Canadian Bar Association

The CBA Task Force on Conflicts of Interest just released their final report. Several issues are addressed, inlcuding multiple representation situations. The following is from the Toolkit created by the Task Force:

Multiple client representation can involve interests which are either divergent from the outset or will become so at some stage. Whether or not the proceeding or matter is contentious, the fact that the interests are divergent means that you will not be able to commit your loyalty and judgment in favour of each of the interests as is required of you. The reality is that it may be difficult to show that each client received the best possible advice that he or she would have received if the lawyer was acting for that party alone and did not have any responsibility to the other client or clients with the divergent interest. In the end, one or more of the clients may complain.

Therefore, you should not act! If in doubt, consult with a colleague, your firm management or conflicts person/committee, outside counsel, or your Law Society’s practice advice hotline.

Questions to help identify a multiple interest conflict:

• What are all of the interests that must be considered during the representation?
• Is there anyone else who has anything to do with the subject matter of the representation?
• If so, what is his/her interest?
• Is more than one person relying on your advice? If so, for what advice?
• If someone attends with a relative or friend, does the relative or friend believe that you are representing his/her interests as well?
• Is someone other than the person affected by the subject matter of the representation paying your fees?
• Where people are contributing to create a business, are their contributions different? Are their rights and obligations different?
• Where people have a joint interest, are their bargaining positions unequal?
• To maximize the interest of one of the persons involved, will the interests of another person be compromised or negatively affected?
• Will you have to keep secret any information from one of the participants that is material to your representation of the other(s)?
• Is there real potential for the parties to have a falling out in the future?