If the client(s) affected by the conflict provide you with permission to continue to act, then you may choose to do so. Section 3.4-2 of the Code outlines the requirements for client consent for representation in the face of a conflict:
3.4-2 A lawyer must not represent a client in a matter when there is a conflict of interest unless there is express or implied consent from all affected clients and the lawyer reasonably believes that he or she is able to represent the client without having a material adverse effect upon the representation of or loyalty to the client or another client.
(a) Express consent must be fully informed and voluntary after disclosure.
(b) Consent may be inferred and need not be in writing where all of the following apply:
i. the client is a government, financial institution, publicly traded or similarly substantial entity, or an entity with in-house counsel;
ii. the matters are unrelated;
iii. the lawyer has no relevant confidential information from one client that might reasonably affect the other; and
iv. the client has commonly consented to lawyers acting for and against it in unrelated matters.
There are several important concepts to consider within this section of the Code, which are outlined below.
Where a lawyer reasonably believes that they can represent a client without having a material adverse effect upon the representation of or loyalty to a client, then the lawyer may act with consent.
There may be times when you are not sure whether the degree of relation between your client and another person is a problem. If this occurs, you can inform your client of your concerns and ascertain whether they are also concerned about the proximity of the relationship. Do not forget to document the client’s instructions arising from this discussion.
Alternatively, in some situations, even if the client does consent to you continuing to act, you may foresee that the conflict will deepen over time. If this is the case, you should seriously consider withdrawing. For advice on how to withdraw, review Module 10 – Withdrawal, and resources listed there.
If your client decides to waive the conflict, their consent must be informed. You must provide your client with full and fair disclosure of all relevant information in sufficient time for your client to make a genuine and independent decision. Some things you should include are:
In addition to ensuring that these permissions are fully informed, they should be in writing and kept on file. If you do not obtain express permission to act, you must disqualify yourself from representing the client(s) in that matter unless you fit within a circumstance detailed in section 3.4-2(b) of the Code.
While, in most cases, it is not required that a lawyer advise a client to obtain independent legal advice about the conflict, in some cases it may be preferred. Independent legal advice ensures that a client’s consent is informed, genuine and uncoerced, especially if the client is vulnerable and not sophisticated. Be certain to document this procedure if it is taken.
In some cases, the Code does require that the lawyer either recommend or require that the client obtain independent legal advice or even independent legal representation. See, for example: s. 3.4-4 (Concurrent Representation with Protection of Confidential Client Information), 3.4-6 (joint representation where the lawyer has a prior ongoing relationship with one of the jointly represented clients), 3.4-31 and 3.4-32 (Borrowing From Clients), 3.4-33 (Lending to Clients), 3.4-35 (Guarantees by a Lawyer), 3.4-36 (When a client intends to pay for legal services by transferring to a lawyer a share, participation or other interest in property or in an enterprise), 3.4-37 (Lawyer receiving a gift from a client that is of more than a nominal value), 7.8-1 (Informing Client of Errors or Omission).