3.3
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; and,
  • 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 sets out 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.

You need to understand that the definition of a "lawyer” in the Code refers to the lawyer and their firm, and states that: “A reference to “lawyer” includes the lawyer’s firm and each firm member except where expressly stated otherwise or excluded by the context.” Accordingly, the Rules regarding conflicts of interest apply to all lawyers who work at the same firm, even if an individual lawyer had no involvement in the matter giving rise to the conflict. As stated in Commentary to Rule 3.4-1: 

[3] The disqualification of a lawyer may mean the disqualification of all lawyers in the law firm, due to the definition of “law firm” and “lawyer” in this Code. The definition of a law firm also includes practitioners who practise with other lawyers in space-sharing or other arrangements. 

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, 24 February 2025, 2:29 PM