11.12 Joint Representations - Continued
In determining whether it is in the best interests of the parties that you act for more than one party, you must consider all relevant factors, including but not limited to:
- The complexity of the matter.
- Whether there are terms yet to be negotiated and the complexity and contentiousness of those terms.
- Whether considerable extra cost, delay, hostility or inconvenience would result from using more than one lawyer.
- The availability of another lawyer of comparable skill.
- The degree to which the lawyer is familiar with the parties’ affairs.
- The probability that the conflict or potential conflict will ripen into a dispute due to their respective positions or personalities of the parties, the history of their relationship or other factors.
- The likely effect of a dispute on the parties.
- Whether it may be inferred from the relative positions or circumstances of the parties that the lawyer would be motivated to favour the interests of one party over another.
- The ability of the parties to make informed, independent decisions.
This list is found in the commentary to Rule 3.4-5, paragraph , of the Code of Conduct
Specific Situations - Mortgage and Loan Transaction:
The commentary to the Code recognizes that a lawyer may act for both borrower or lender in appropriate mortgage or loan transactions (if both parties consent), provided that the lawyer discloses all information material to the transaction to both parties before funds are advanced.
As an example, a lawyer representing a buyer/mortgagor may act for the mortgage lender as well. The lawyer has duties to the mortgage lender client to advise the lender if the sale to the buyer does not close in accordance with the purchase documents, regardless of whether the instructions to the solicitor issued by the mortgage lender explicitly state this.
Specific Situations - Wills:
The commentary also covers joint retainers for wills for spouses or domestic partners. Lawyers acting in these retainers must ensure that both parties understand what will happen if one of them gives conflicting instructions to the lawyer and that any information, including instructions, given by one must be shared with the other. And if one spouse subsequently gives instructions to change or revoke a will, the lawyer must decline this new retainer unless the other spouse has died, the marriage has been annulled (or the relationship has ended) or the other spouse has been informed of the new instructions and has agreed that the lawyer can act on the new instructions.
For more information, see Practice Pro's (Ontario) document: Managing Conflict of Interest Situations - Appendix 1 Checklist to Identify Conflicts Involving Multiple Interests (pages 17-21). If you have questions concerning conflicts of interest, contact the Law Society of Alberta Practice Advisors.