11.26 What Happens When a Conflict Arises
When a conflict arises, your actions will depend on what stage you have reached in the matter. If the conflict is identified at the initial search stage, you need to analyze the conflict to determine if it is such that you must not act. You should decline to take the case and provide a non-engagement letter.
See example of a Non-engagement Letter (or Non-retainer letter).
If you may act, you must comply with the provisions of the Code of Conduct that apply to the type of conflict that confronts you.
If you already represent the client or clients, you should promptly inform them in writing that a potential conflict exists.
In order for your client to waive a conflict, consent must be informed. Ensure that any consents you receive are in writing and keep them on file. You need to explain the conflict fully and in clear language, and include and explanation of the potential consequences of the conflict. Consider:
- Describing the scope of the matter and how the conflict relates to it.
- Breaking down the conflict by isolating the parties/events that give rise to the conflict, or might in the future, and what the practical and legal implications are.
- Setting out the pros and cons of your continued representation.
For more information on this topic, view the Conflicts of Interest Toolkit on the CBA website. You will need to login to the website to access this resource.
Where it is advisable to recommend or require that a client receive independent legal advice, be certain to document this communication. The booklet "Identifying a Conflict of Interest Situation" provides a good overview of the steps to take and matters to consider when seeking a waiver of a conflict. See also “The Elements of Conflicts Waivers”.
Remember that the Practice Advisors are available for confidential discussions about conflicts and potential conflicts.