Transferring Between Law Firms

If you are transferring from one firm to another, or if you operate a firm and are considering hiring a lawyer who currently works at another firm, you will need to be aware of the rules governing transfers between firms.

It is very important to note that conflict checks, client information and consents, and confidentiality screens should occur BEFORE an offer of employment is made to a transferring lawyer. When establishing a process for assessing conflicts relating to transfer lawyers, we recommend reviewing MacDonald Estate, as well as Aitken v Smith, 2010 SKQB 281 and Swan v Schoeman, 2013 SKQB 103 for the most current (as of 2023) treatment of this issue by Saskatchewan courts.

Law Firm Disqualification
3.4-20 If the transferring lawyer actually possesses confidential information relevant to a matter respecting the former client that may prejudice the former client if disclosed to a member of the new law firm, the new law firm must cease its representation of its client in that matter unless:

(a) the former client consents to the new law firm’s continued representation of its client; or
(b) the new law firm has:

(i) taken reasonable measures to ensure that there will be no disclosure of the former client’s confidential information by the transferring lawyer to any member of the new law firm; and
(ii) advised the lawyer’s former client, if requested by the client, of the measures taken.

Transferring Lawyer Disqualification
3.4-21 Unless the former client consents, a transferring lawyer referred to in Rule 3.4-20 must not:

(a) participate in any manner in the new law firm’s representation of its client in the matter; or
(b) disclose any confidential information respecting the former client, except as permitted by Rule 3.3-7.

3.4-22 Unless the former client consents, members of the new law firm must not discuss the new law firm’s representation of its client or the former law firm’s representation of the former client in that matter with a transferring lawyer referred to in Rule 3.4-20, except as permitted by Rule 3.3-7.

The rules regarding transfers between law firms are triggered when a law firm is considering hiring a lawyer who would be transferring from another law firm, and it is discovered that:

  • The new firm represents a client in a matter that is the same or related to a matter in which the former firm represents its client
  • The interests of those clients in that matter conflict; and
  • The transferring lawyer possess relevant information respecting that matter.

When a transferring lawyer possesses confidential information relevant to a former client’s matter, that knowledge may prejudice the former client if it is disclosed to a member at the new firm. The result of the transfer process is that the new firm must cease representing its client unless:

  • The former client consents to the new firm’s continued representation of its client; or
  • The new law firm has taken reasonable measures to ensure that there will be no disclosure of the former client’s confidential information by the transferring lawyer to any member of the new law firm and advised the lawyer’s former client, if requested by the client, of the measures taken.

This rule emphasizes how critical it is to have a robust conflict checking system in place. While it is possible the former client will consent to the new firm’s continued representation of its client, it is also possible they will not.