Law Practice Essentials

Current client conflicts are addressed in the Code of Conduct, Rule 3.4-3:

This Rule is known as the “bright line rule” recognized by the Supreme Court of Canada in R v Neil [2002] 3 SCR 631 and is based on a lawyer’s duty of loyalty to a client’s cause.  As stated in commentary to Rule 3.4-3:

The application of the “bright line rule” means that you may not act both for and against the same client, even if the matters are unrelated and even if confidential information is not at risk.  A conflict will exist if there is legal adversity between the two current clients.  To determine if a current client or “bright line” conflict exists, you must assess the temporal relationship between the matters, the immediacy of the legal interests and the significance of the issue to the long-term interests of both clients. A client may also have reasonable expectations that his or her lawyer will never represent an adverse party. Such conflicts may, however, be cured by obtaining express consent from the clients.

Your duties of candour and commitment can also be engaged when you seek to act for an adverse party. The duty of candour to a current client means that you must disclose when accepting a retainer from an adverse party. The duty of commitment to the client’s cause means that you cannot drop an existing client to accept a retainer from a more lucrative or attractive client (see: Canadian National Railway Co. v McKercher LLP, 2013 SCC 39, [2013] 2 SCR 649 at para 44). 

In the case of institutional clients who employ a number of law firms, consent to act against them may be implied, though this may only be applicable in rare cases. Client consent may be implied or inferred where you have a reasonable basis for believing that the client has consented, based on the terms of your retainer, the relationship with the client and the nature of the unrelated matters. Scarcity of legal services providers (due to degree of specialization or geography) may constitute a reasonable basis for believing that consent is implied.

Disqualification for Tactical Purposes

The Code of Conduct states that the “bright line rule” is not to be used for tactical purposes. Raising conflicts as a means to disqualify an opposing lawyer for improper purposes or to inconvenience the opposing party is not permitted.