Conflict of Interest

• Author: David Layton; Michel Proulx
• Pages: 263-328

263

CHAPTER 6

CONFLICT OF INTEREST

A. INTRODUCTION

A conf‌lict of interest occurs whenever a lawyer is placed in a position

where loyalty to a client is compromised. There are an inexhaustible

number of situations in which a conf‌lict problem can arise. The con-

f‌licting interests may involve current, former, or prospective clients,

and sometimes even third parties with whom a client-lawyer relation-

ship is never established or contemplated. A lawyer’s loyalty may also

be compromised by her own interest or the interest of an aff‌iliated law-

yer. Categorizing scenarios according to the type of conf‌lict raised is

a helpful way to address the ethical and legal obligations of criminal

counsel in this area. A discussion of any particular scenario, however,

is incomplete without examining the principles that make conf‌lict

avoidance so important, as well as the professional-conduct standards,

common law rules, and constitutiona l guarantees that are derived from

and ref‌lect these principles.

B. BASIC PRINCIPLES

The client-lawyer relationship is based on the highest of trusts, where

the lawyer’s loyalty is unquestioned. The duty to be loyal, born of the

f‌iduciary relationship between counsel and client, guides and informs

ETHICS AND CRIMINAL LAW264

every aspect of the lawyer’s dealing with a client.1 It underpins import-

ant related obligations such as the duty of conf‌identiality. As we shall

see, the duty of conf‌identiality i s particularly important in the real m of

conf‌lict of interest. Yet a threat to conf‌identiality is not a precondition

to the existence of a conf‌lict problem. The leitmotif of conf‌lict of inter-

est is the broader duty of loyalty.2 Where the lawyer’s duty of loyalty is

compromised by a competing interest, a conf‌lict of interest will exist

even when there is no possibility that conf‌idential information will be

misused.

The importance of loyalty to the client-lawyer relationship is under-

lined by the adversarial nature of the criminal justice system. An ad-

versarial system gives litigants the right and responsibility to present

their own cases and to challenge the evidence and arguments of their

opponents. As agents for the litigants, lawyers operate within this ad-

versarial sett ing, making loyalty towards the client absolutely essential

— a lawyer must act as zealous advocate for the client’s cause.3 Failure

to provide loyal service may harm the client’s ability to exercise im-

portant constitutional rights.4 It can also undermine the reliability of a

result and the public’s conf‌idence in the legal process.

The duties necessary for a healthy client-lawyer relationship are

thus, by extension, funda mental to the entire administ ration of justice.5

It follows that guarding against conf‌lict of interest prevents harm to

both the client and the criminal justice system.6

1 See R v Neil, 2002 SCC 70 at paras 12, 16, and 25–27 (SCC) [Neil]; Strother v

3464920 Canad a Inc, 2007 SCC 24 at paras 34–35 [Strother]; Amato v Welsh, 2013

ONCA 258 at paras 58 –59.

2 See Strother, above note 1at para 35. See also Alta, Sa sk r 2.04(1) (commentary);

Man r 3.4-2, commentary 2; BC , Ont, NS, NL r 3.4-1, commentar y 5; NB ch 6, rule.

3 See Canadian Nati onal Railway Co v McKercher LLP, 2013 SCC 39 at para 25

[McKercher].

4 For example, the ri ghts discussed in C hapter 1, Section D.

5 See Neil, above note 1 at pa ra 12.

6 See Sask r 2.04(1) (commentary); BC, Ont, NS, NL r 3.4-1, commentary 5: public

conf‌idence in the ju stice system depends on law yers’ respecting the dut y of

loyalty. See also Mac Donald Estate v Martin, [1990] 3 SCR 1235 at 1244 [paras

13, 15, and 18] [MacDonald Estate]; Neil, above note 1 at p ara 24; Strother, above

note 1 at para 34; McKercher, above note 3 at para 13; R v Robillard (1986), 2 8

CCC (3d) 22 at 27 (Ont CA) [Robillard]; Richard Devlin &VictoriaRees, “Be-

yond Conf‌licts of Inter est to the Duty of Loyalty: From Mar tin v Gray to R v Neil”

(2005) 84 Can Bar Rev 433 at 443.

Conf‌lict of Intere st265

C. RELATED RULES OF PROFESSIONAL

CONDUCT

Many rules of professional conduct emphasize the principles driving

the proscription against conf‌lict of interest. Most importantly, Canadian

governing bodies have adopted comprehensive rules that specif‌ically

address conf‌lict issues.7 The content of these rules is discussed exten-

sively throughout this chapter. For now, suff‌ice it to say that they rec-

ognize that the client’s interests and the administration of justice more

broadly may be seriously impaired when a lawyer’s judgment and abil-

ity to act on the client’s behalf is not free from compromising i nf‌luences.

Other rules of professional conduct furt her ref‌lect the concerns raised

when a lawyer confronts a possible conf‌lict of interest, for instance

1) Integrity: Lawyers are required to discharge with integrity all dut-

ies owed to a client, the court, the public, and other members of

the profession.8 Integrity is the fundamental quality of a lawyer,9

representing a key element of each rule of professional conduct,

and from the perspective of the client f‌inds expression in absolute

trustworthiness.10 Trustworthiness, or loyalty, is seen to be the es-

sential element of the client-lawyer relationship.11

2) Conf‌idential information: A lawyer has a duty to hold in strict con-

f‌idence all information concerning the business and affairs of the

client acquired in the course of the professional relationship.12 The

information cannot be used for the benef‌it of the lawyer or a third

party, or to the detriment of the client,13 and this duty per sists even

after the professional relationship ends.14

7 Alta, Sask r 2.04; BC, Man, O nt, NS, NL r 3.4; Que s 3.06; NB ch 6; CBA Code

chV& VI.

8 BC r 2.2-1; Alta, Sask r 1.01(1); Man, Ont, NS, NL r 2.1-1; Que s 2.00.01; NB ch 1,

rule; CBA Code ch I, r ule.

9 BC r 2.2-1, commentary 1; Alt a, Sask r 1.01(1) (commentary); Man, Ont, NS, N L

r 2.1-1, commentar y 1; NB ch 1, commentary 1; CBA Code ch I, comment aries 1

& 2.

10Se e rules and commentarie s cited at preceding note.

11CB A Code ch I, commentary 1.

12Alta, Sa sk r 2.03(1); BC, Man, Ont, NS, NL r 3-3.1; Que s 3.06, Professional Code,

CQLR c C-26, s 60.4, and An act respecting the Barreau du Qu ebec, CQLR c B-1, s

131; NB ch 5, rule; CBA Code ch IV, r 1.

13 Alta, Sa sk r 2.03(2); BC, Man, NS, NL r 3.3-2; Ont r 3.3-1, commentary 11.1;

Que s 3.06.01; CBA Code ch IV, commentary 14.

14Alta, Sask r 2.03(1) (commentary); BC, Man, Ont, NS, NL r 3.3-1, commentar y

3; NB ch 5, commentary 4; C BA Code ch IV, commentary 6.