Rule 3.4-5 in the Code of Conduct contemplates joint retainers. A lawyer may act for two or more clients in the same matter if the lawyer:
- Obtains the consent of the clients following disclosure of the advantages and disadvantages of the joint retainer.
- Ensures the joint retainer is in the best interests of each client.
- Advises each client that no information received in connection with the matter from one client can be treated as confidential or withheld from the other clients.
- Advises each client that, if a conflict develops that cannot be resolved, the lawyer cannot continue to act for all of them and may have to withdraw.
Put another way, 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 his mind and pleads not guilty. See R. v. Silvini (1991) 5 OR (3d) 545 (C.A.) 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.
Lawyers considering joint retainers 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 . Where the likelihood of a conflict is high, lawyers 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. Lawyers’ failure to fulfil their obligations to their clients in joint retainer arrangements often result in complaints and professional negligence actions against lawyers.
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.