11.3 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.
- 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.