Canadian lawyers must be aware of all potential conflicts of interests to appropriately serve their clients. The Canadian Bar Association has been working for many years to provide the legal profession with resources in order to better understand the laws and regulations surrounding conflicts of interest in Canada.
On this page, you will find materials prepared by the CBA’s Task Force on Conflicts of Interest that explain the state of the law and how we got to where we are. In addition, you will find information on recent case law, the state of law in the U.S. and the U.K., and links to the individual codes of conduct from the respective provincial law societies. Read on to become an expert.
CBA at the Supreme Court of Canada:
Canadian National Railway v. McKercher LLP, et al., 2013 SCC 39 (CanLII) — 2013-07-05
SCC brings welcome clarity to conflicts rule (Press Release July 2013)
The CBA intervened before the Supreme Court of Canada on January 24, 2013 on the scope of the duty to avoid conflicts of interest. Pro bono legal counsel for the CBA were Malcolm Mercer, Eric Block and Brendan Brammall of McCarthy Tétrault LLP.
The CBA argued that this duty does not categorically prohibit acting directly adverse to the immediate interests of a current client. The CBA position reflects its ongoing commitment to access to justice and the right to choice of legal representation. Click here to read the CBA’s Factum.
Conflicts of Interest: Final Report, Recommendations & Toolkit
The focus of the work of the Task Force is the lawyer-client relationship. This Report and its recommendations consider how the lawyer-client relationship is established, the fundamental duties lawyers owe their clients, and the benefit of written understandings between clients and lawyers: Final Report (.pdf)
To help lawyers to recognize, deal with and avoid conflicting interests, the Task Force also prepared a toolkit containing practical checklists and precedents that lawyers may use and adapt for their practices.
Codes of Professional Conduct
The CBA's Code of Professional Conduct (2009) has been updated to reflect the realities of practising law in today’s society. The new Code contains major revisions in two areas: conflicts of interest and clients’ language rights.
Links to all the Law Society Codes of Conduct:
Recent Case Law
We have prepared an overview and list of recent cases on conflicts of interest matters for you. Please contact us about relevant cases that we have not included.
Supreme Court of Canada Decisions:
The United States
The American Bar Association Commission on Ethics 20/20 is examining a broad range of regulatory and ethical issues with a view to proposing amendments to the ABA’s Model Code. In November, 2009, the Commission published a Preliminary Issues Outline which set out its thinking on its initial agenda of issues. www.abanet.org/ethics2020/outline.pdf
The nine-page document covers many practice matters, including complex multijurisdictional issues and conflicts rules. More details available here.
England and Wales
The Solicitors Regulation Authority is the independent regulatory body in England and Wales, regulating over 100,000 solicitors. For an up-to-date status of the law on conflictsof interest in England and Wales, please visit: http://www.sra.org.uk/solicitors/handbook/code/content.page
CBA Resolutions on Conflicts of Interest
Protecting Your Client, Yourself and Your Firm: When and How to Use an Engagement Letter presented on January 27, 2011. For Program recording information, please click here.
Short-term Agreements for Legal Services: Avoiding Conflicts through Plain Language Drafting presented on January 24, 2012. For Program recording information, please click here.