Conflict of Interest

AuthorDavid Layton; Michel Proulx
A conf‌lict of interest occurs whenever a lawyer i s placed in a position
where loyalty to a client is compromised. There are an inexh austible
number of situations in which a conf‌lict problem can arise. The con-
f‌licting interests m ay involve current, former, or prospective clients,
and sometimes even third pa rties 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 intere st of an aff‌iliated law-
yer. Categorizing scenarios according to t he type of conf‌lict raise d is
a helpful way to address the ethical and legal obligations of criminal
counsel in this a rea. A discussion of any part icular scenario, however,
is incomplete without examining t he principles that make conf‌lict
avoidance so important, as well a s the professional-conduct standards,
common law rules, and constitutiona l guarantees that are derived from
and ref‌lect these 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 bet ween counsel and client, guides and informs
every aspect of the law yer’s dealing with a client.1 It underpi ns 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 t hat conf‌idential information will be
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 case s and to challenge the evidence and arguments of their
opponents. As agents for the litigants, law yers 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 h arm the client’s ability to exercise im-
portant constitut ional 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 cl ient-lawyer relationship are
thus, by extension, funda mental to the entire administ ration of justice.5
It follows that guarding again st conf‌lict of interest prevents harm to
both the client and the cri minal 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 Strothe r, above note 1 at 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
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 & Victori a Rees, “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 st 265
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 is sues.7 The content of these rules is discussed exten-
sively throughout this chapter. For now, suff‌ice it to say that they rec-
ognize that t he client’s interests and the admini stration 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 dis charge with integrity all dut-
ies owed to a client, the court, the public, and other members of
the profession.8 Integ rity is the funda mental 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 t he 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
ch V & 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.
10 Se e rules and commentarie s cited at preceding note.
11 CB A Code ch I, commentary 1.
12 Alta, 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.
14 Alta, 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.

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