Lawyers´ Insurance Association of Nova Scotia

#1 - Conflict of Interest

Standard

A lawyer must take all reasonable steps to avoid circumstances likely to create an actual or perceived conflict of interest.¹

A lawyer should take all reasonable steps to ensure that a conflicts check is complete before confidential information is provided or advice is given in initial contact with the client or client’s agent.²

A lawyer should be aware that a solicitor-client relationship and the resulting duty of care may arise prior to a formal retainer.³

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Reference Materials

Notes

1. MacDonald Estate v. Martin, 1990 CanLII 32, [1990] 3 S.C.R. 1235. - standard to be applied in the legal profession in determining what constitutes a disqualifying conflict of interest; M.(R.) v. C.(F.), 1987 CarswellOnt 2455, (sub nom. Medakiewicz v. Courtney) [1987] O.J. No. 1905 (Ont. Prov. Ct. (Fam. Div.)). - Family litigation - The intensely personal nature of family dispute requires a greater sensitivity to the perception of a possible conflict of interest; Fisher v. Fisher (1986), 73 N.S.R. (2d) 181, C21/18 (NSLN) (S.C. (T.D.)) – Family Matter – Previous interview with member of law firm; Montreal Trust Company of Canada v. Basinview Village Ltd., 1995 CanLII 4247, 142 N.S.R. (2d) 337 (C.A.). – disqualification of a lawyer from acting against a former client
2. MacDonald Estate v. Martin, 1990 CanLII 32, [1990] 3 S.C.R. 1235. - File documentation evidencing the conflict check and full notes regarding any discussion with the potential client should be retained in the file.
3. Descôteaux v. Mierzwinski, 1982 CanLII 22, [1982] 1 S.C.R. 860. – solicitor-client relationship – confidential communication prior to formal retainer;

Additional Commentary 

Strother v. 3464920 Canada Inc., 2007 SCC 24 (CanLII), [2007] 2 S.C.R. 177. - conflicts - personal interests of a solicitor.

R. v. Neil, 2002 SCC 70 (CanLII), [2002] 3 S.C.R. 631; Strother v. 3464920 Canada Inc., 2007 SCC 24 (CanLII), [2007] 2 S.C.R. 177; - firm and solicitor owe duty to former and current clients.

Maranda v. Richer., 2003 SCC 67 (CanLII), 3 S.C.R. 193. – Confidential Information – Solicitor-Client Relationship – Access to Justice.

Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII), 263 N.S.R. (2d) 272. – Public Interest – Administration of Justice – Acting against former client.

Card v. Card., 1997 NSCA 2211 (CanLII), 161 N.S.R. (2d) 227.; S412/6 – Conflict of Interest – acting against former client.

G.C. v. Family & Children's Services of Lunenburg County (2000), 185 N.S.R. (2d) 163, 2000 CarswellNS 145 (WC), [2000] N.S.J. No. 146 (QL), FC31 (Fam. Ct.) – Conflict not found - Court satisfied that no relevant information was or would be imparted.

Ryan and Schwartz v. Schwartz, 2000 NSCA 82 (CanLII), 185 N.S.R. (2d) 122. -Removal of wife as son's litigation guardian was ordered - Requirement that solicitor continue to act for both was an error and removal of solicitor was ordered.

Crohn v. Crohn (1980), 5 Sask. R. 353, 1980 CarswellSask 160 (WC), [1980] S.J. No. 550 (QL) (Q.B.). - caution regarding acting for both parties in a family law matter.

Boyd v Boyd, 2008 CanLII 1417, 54 R.F.L. (6th) 460 (Ont. Sup. Ct.). - family matter - lawyer sues client for outstanding bill and continues to represent him - judgment registered against the matrimonial home.

Wolfe v. Wolfe, 2003 CanLII 474, 243 Sask. R. 95 (Q.B.). - confidential information - solicitor/client privilege applies to conversations between the agents of a client and the solicitor or between a client and agents of the solicitor.

Sauter v. Sauter, 2003 CanLII 349, 237 Sask. R. 311 (Q.B.) - examples of topics, information and relationships which may or may not cause a solicitor to be removed from a file due to a disqualifying conflict of interest.

Banks v. Reid (1974), 6 O.R. (2d) 404, 1974 CarswellOnt 370 (WC), [1974] O.J. No. 2186 (QL) (H.C.); - a solicitor failed to advise his clients about the possibility of conflict of interest.

Krupp v. Krupp (2003), 27 C.P.C. (5th) 301, 2002 CarswellOnt 2799 (WC), [2002] O.J. No. 3299 (QL) (Ont. Sup. Ct.). - secretary had previously been employed by the husband’s counsel.

Dalgleish v. Dalgleish, 2001 CarswellOnt 2016 (WC), [2001] O.J. No. 2187 (QL) (Ont. Sup. Ct.). - Wife disclosed confidential information with law firm subsequently hired by husband.

Popowich v. Saskatchewan, 1995 CanLII 5956, 132 Sask. R. 48 (Q.B.). - Solicitor-Client relationship – Clients Perception.

De Beers Canada Inc. v. Shore Gold Inc., 2006 SKQB 101 (CanLII), 278 Sask. R. 171 (Q.B.). - factor to be taken into account when relief sought in conflicts matter. 

Bell v Nash, 1993 CanLII 845 (BC C.A.) - telephone conversation with opposite party even though not yet retained is a conflict.

Burgess v. Burgess, 1997 CanLII 788 (BC S.C.) - Former social relationship with and prior wills retainer with opposite party found to be a conflict of interest.

Downloads

Related Ethics:

Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) c. 5-7, 18, as amended.

Chapter 4 – Honesty and Candour When Advising Clients

Chapter 5 – Confidentiality

Chapter 6 – Impartiality and Conflict of Interest Between Clients

Chapter 6A – Conflicts Arising as a Result of Transfer Between Law Firms

Chapter 7 – Conflict of Interest Between Lawyer and Client

Chapter 8 – Outside Interests and the Practice of Law

Resources:

Family Court Liaison Committee see:
InForum 2009-12-21 - Divorce matters in which one lawyer represents both parties may be rejected (see page 3: Notice from the Supreme Court Liaison Committee (Family Division))

CLIA (Canadian Lawyers Insurance Association) - Issue 48 - Winter (2010) - Bulletin # 190 - Does a 7-Minute Call Create a Solicitor/Client Relationship?

LIANS – Lawyers' Insurance Association of Nova Scotia

NSBS - The Nova Scotia Barristers’ Society

CBA Conflicts of Interest Tool Kit: PDF Format

Conflicts of Interest Checklist - LIANS

Checklist of essentials of conflict checking systems from practicePRO.ca

Articles

Gillis, Deborah E. / Effective Intake Procedures (Part 1) (August 2006) in Society Record, vol. 24, No. 4

Gillis, Deborah E. / Effective Intake Procedures (Part 2) (October 2006) in Society Record, vol. 24, No. 5

Pinnington, Dan / Conflict of Interest: The Third Most Common and second most costly Malpractice Error (March 2003) in LawPro Magazine

Devlin, Richard; Rees, Victoria / Conflicts of interest : where are we since R v. Neil?: case comment (February 2006), in Nova Scotia Law News, vol. 30 no. 6, p. 113.

Murray, Donald C / A conflict of interest refresher (2000), in Nova Scotia Law News, vol. 25, p. 29.

Parish, Alan V. / Conflict of interest: the continuing saga of Martin v. Gray (January 1994), in Bar refresher 1994. [KB 7.25 N935 1994]

Cotter, Brent / The Supreme Court of Canada speaks on lawyers' conflicts of interest (1991), in Nova Scotia Law News vol. 17 p. 125. 

Macnair, M. Deborah. / Conflicts of interest: principles for the legal profession—Aurora, Ont. Canada Law Book, 2005. [KB 29 .L5 M169 2005]

Perell, Paul M. / Conflicts of interest in the legal profession—Toronto : Butterworths, 1995. [KB 265 P437 1995]

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Approved by Council on March 25, 2011