Lawyers occupy fiduciary positions with respect to their clients. They can’t act in a conflict of interest and at the same time hope to represent the client’s best interests. Conflicts of interest may be obvious at the outset or they may manifest as the proceeding unfolds. There may be many ways in which they surface. Key to maintaining the fiduciary relationship and upholding the integrity of the lawyer-client relationship and the administration of justice, is being able to spot and be sensitive to when a conflict of interest may arise or whether one has arisen. The Courts have the power and discretion to disqualify lawyers from representing a party , in conflict of interest situations.
Conflicts of Interest can arise in different scenarios. The Conflicts may arise, for example when a lawyer represents more than one client in a multiple retainer. Or when a lawyer is retained on a case that involves acting against a former client. A change in law firms ,where a lawyer has knowledge of a client’s legal affairs, and joins a law firm acting against the former client is another scenario. Yet another is when a lawyer is in a position of having to give significant or controversial evidence in a case in which he or she or an associate acts as counsel. (See Bose v. Bangiya Parishad Toronto 2018 ONSC 7639, at para. 84 for a discussion of different types of conflict of interest). There are general scenarios where conflicts of interest arise as set out above. Yet as in many legal situations and different factual circumstances, the categories of Conflict of interest, in my view, are not closed.
As is the case with any legal issues, of key importance is the ability to spot the issue at the appropriate time and better yet, anticipate the issue if possible, and take steps consistent with maintaining the integrity of the lawyer-client relationship and the administration of justice as a whole. Failure to spot the issue jeopardizes the lawyer’s fiduciary responsibilities and the reputation of the administration of justice. This is an area where being pro-active as opposed to reactive can pay material dividends. Integrity dividends. Reputational dividends. Fiduciary dividends. And yes even monetary dividends, where significant costs and wasted time are saved.
William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.