11.14 – Conflicts and the Courts

The Supreme Court of Canada has recognized in the landmark case MacDonald Estate v Martin, [1990] 3 SCR 1235, that while courts are not bound to apply codes of professional ethics in asserting their jurisdiction to remove a solicitor of record where a conflict of interest exists, the court should consider expressions of professional standards contained in a code of ethics as an important statement of public policy.

In MacDonald Estate, the Court indicated that when considering conflicts issues, two questions must be answered:

1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? To meet this requirement the solicitor must, without revealing specifics of the privileged communication, satisfy the court that a reasonable member of the public would accept that no confidential information relevant to the new matter passed between the solicitor and client during the previous matter. If it is shown that a previous relationship (sufficiently related to the retainer) existed, the court should infer that confidential information was imparted unless the lawyer can discharge the burden by showing that no relevant information was imparted.
2. Is there a risk that the confidential information will be used to the prejudice of the client? A lawyer who has relevant confidential information is automatically disqualified from acting against a client or former client. With respect to partners or associates in a firm, there exists a strong inference that lawyers who work together share confidences. To dispute this inference, clear and convincing evidence is required to show that all reasonable measures have been taken to ensure no disclosure will take place between the lawyer who possesses confidential information about the client to the other lawyer(s) in the firm engaged against the former client.

The courts must balance the importance of preserving solicitor-client confidentiality and the public’s confidence in the integrity of the profession and ensuring the administration of justice is preserved and enhanced with the public’s interest in retaining counsel of choice and the interests of the profession in allowing lawyers to move between firms.

A lawyer should not continue to represent a client in a court proceeding where the lawyer has to request the court’s indulgence to correct an error the lawyer has made. The proper procedure is to report the error SLIA and get their instructions on how to proceed.

If a conflict arises in a court or tribunal setting in which you are required to withdraw, be sure to follow the rules governing the withdrawal process found in section 3.7 of the Code of Conduct.