What is a Conflict of Interest

You are in a fiduciary relationship with your clients. This means that, in addition to other duties you may have arising from a specific representation, you owe the following duties to clients:

  • The duty to avoid conflicts of interest.
  • The duty not to disclose confidential information.
  • The duty of commitment to the client’s cause.
  • The duty of candour with a client on matters relevant to the retainer.

Rule 3.4-1 of the Code of Conduct states:

A lawyer must not act or continue to act for a client where there is a conflict of interest,  except as permitted under this Code.

The Commentary under this rule also sets forth the definition of a conflict, as follows:

A conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duty to another client, a former client, or a third person.

The Code allows a lawyer to act even when a conflict is present in some situations provided that the client gives fully-informed and voluntary consent after the lawyer fully discloses all relevant information.

There is, however, an exception. Rule 3.4-2 states:

A lawyer must not represent opposing parties in a dispute.

While some conflicts or potential conflicts may be permitted by the Code when the client gives informed consent, acting for both sides in a dispute is never allowed.

Last modified: Monday, 21 August 2023, 9:12 AM