Rule 3.4-5 in the Code of Conduct contemplates joint
retainers. You may act for two or more clients in the same matter if you:
- obtain the consent of the clients
following disclosure of the advantages and disadvantages of the joint
retainer;
- ensure the joint retainer is in the best
interests of each client;
- advise each client that no information
received in connection with the matter from one client can be treated as
confidential or withheld from the other client; and
- advise each client that, if a
conflict develops that cannot be resolved, the lawyer cannot continue to
act for either of them and may have to withdraw.
Put another way, you need to get informed consent from the clients and
ensure they know the difference between jointly retaining one lawyer to act for
all and retaining independent counsel to act for each individual client. You
will bear the onus of proving that you made full disclosure of all relevant
information and that the client consented. It is advisable to fully
document both the disclosure and the consent.
You are not required to automatically advise clients to obtain
independent legal advice about conflicting or potentially conflicting
interests. You must, however, address your mind to whether it is appropriate to
recommend legal advice in the circumstances. Consider whether the client is
unsophisticated or vulnerable.
It is important to remember that a conflict can arise during the course
of the relationship, and you should remain aware of the potential for conflicts
to arise throughout the retainer. In other words, it is not enough to turn your
mind to conflicts only at the inception of the lawyer-client relationship.
The following are examples of conflicts that may arise during the course
of a retainer:
- You jointly represent business partners who subsequently have a
falling-out regarding the direction for the enterprise.
- A passenger and driver of vehicle A consult you and want you to
represent them in a motor vehicle accident case. Upon learning the
details and receiving confidential information, you are of the opinion
that the passenger has a potential claim against the driver of vehicle A,
as well as the driver of vehicle B. You could not continue to act for
either the driver or the passenger of vehicle A and you would have to send
them away, directing them to each get their own counsel. There is a
possibility that you could continue to act for one of them, but only if all
parties consent to you doing so.
- You jointly represent co-accused. You anticipate that A will plead
guilty and provide evidence that the other co-accused, B, was not party to
the crime. At trial, A changes their mind and pleads not guilty. See R v Silvini, 1991 CanLII 2703, (1991) 5 OR (3d) 545 (ON CA)
for an example of this in a conspiracy to traffic heroin case. See also R v Lewis, 2011 ABQB 227, regarding
potential conflicts of interest which arise if a criminal defence lawyer
faces the prospect of cross-examining a former client during a trial.
If you are considering acting under a joint retainer, you should
be mindful that there is always a possibility that the clients’ legal interests
may come into conflict in the future, even if they seem to be aligned at the
outset of the retainer. There are certain situations where the likelihood of
conflict is more apparent than in others – see the commentary to Rule 3.4-5,
paragraph [6]. Where the likelihood of a conflict is high, you should not
accept joint retainers. Joint representation of co-accused clients is one
example, as set forth above.
The test for assessing the feasibility of a joint retainer is to
determine whether you are able to represent each client in the joint retainer
to the same degree. If the interests of one client will be sacrificed by the
pursuit of the interests of another client, you should withdraw or consider not
acting at all if the likelihood of a conflict is high. As an example, acting
for both sides in a negotiated commercial transaction is not recommended. A lawyer’s
failure to fulfil their obligations to their clients in joint retainer
arrangements often result in complaints and professional negligence actions.
Many lawyers send letters to their clients outlining actual and
potential conflicts of interest and ask the clients to consent to the lawyer
acting for both or all parties. Your conflicts letter should cover the four
points set out above so that you can establish you received informed consent
from your clients.