Saturday, January 20, 2018

The Lawyer's Key Duty: Undivided Loyalty to A Client's Cause

   Bodies which regulate the legal profession in Canada and elsewhere all correctly proclaim that they do so in the public interest.  Their purpose is to ensure that the lawyers whom they regulate discharge their duties to their clients i.e. the public in a manner that is in the public interest and most importantly consistent with The Rule of Law.

Conflict of 

   One of the cardinal rules of legal ethics is that lawyers must avoid conflicts of interests.  Sometimes what is a conflict of interest is plain and obvious.  A criminal lawyer who represented a client in the past and then joins the Crown's office would be in a conflict if he or she was called upon to prosecute the former client.  The rationale underlying this prohibition is that the lawyer would have obtained confidential information from the client which he or she could use against the former client.

    What about a lawyer and his law firm which has acted for a lawyer-client previously* and is then called upon to represent a client referred to him by the said former lawyer-client on an appeal matter, where subsequent to entering into the retainer,  claims ranging from civil wrongdoing to professional misconduct are raised against the former lawyer-client and the referred client in the referred client's case ?

   What if the referred client is of the view that all of the allegations against him and the former lawyer-client - his trial counsel are unfounded and motivated by bias ?

   What if the lawyer accepting the referral is an elected member of the regulatory body regulating the profession and sits as an adjudicator on its disciplinary body ?   

    Is the lawyer and the law firm accepting the referral at liberty to partake in the governing bodies investigation of the referring lawyer during the course of the subject retainer without the consent of either client ?

Divided Loyalty:

   The questions posed above are weighty and unprecedented.  While they may or may not be of the same importance to regulators and academics, I would submit that they are highly important to the members of the public who retain lawyers to protect their legal rights. Members of the public want and crave the undivided loyalty of their lawyers when engaged in litigation - especially public litigation involving the state.  A lawyer who has a loyalty or interest to any party or third party in a proceeding labours under a serious handicap which necessarily impairs his or her ability to properly defend a client.

Duty of "Candour":

Definition:  1.   the state or quality of being frank, open, sincere in speech or expression; candidness.
2.   freedom from bias; fairness, impartiality.  3.   Obsolete. kindliness.  4.  Obsolete purity.

In R  v. Neil [2002] S.C.R. 631 Justice Binnie determined that an aspect of the duty of loyalty involves a duty of condour with the client on matters relevant to the retainer.

In his May 7, 2013 piece entitled Duty of Candour, Law Society of Ontario Bencher and adjudicator Mr. Malcolm Mercer, wrote the following on this subject:  "Fifth, being in a position of accepting a legal obligation of confidentiality is not an excuse for lack of candour but rather a real problem.  The House of Lords put this nicely in Hilton  v. Barker Booth and Eastwood:  ..."if a solicitor puts himself in a position of having two irreconcilable is his own fault."


   Can client's consent to a lawyer's breach of loyalty and candour ?  Law Society of Ontario Bencher and adjudicator, Mr. Malcolm Mercer stated the following in his piece of the Duty of Candor referenced above:

"Third, candour probably can't be waived.  We know that actual conflicts, as opposed to potential conflicts, can be waived.  Where representation will be materially impaired by a conflict, the conflict is not waivable.  A client can only accept the risk of material impairment.  If clients cannot agree to impaired representation for conflicts, the same should be true for candour.  It follows that clients must have the information required to effectively instruct counsel and act on advice given by counsel. Further, the client must have the information required to assess whether the fiduciary acted properly."

"Consent" Defined:
(LSO Rules of Professional

    means fully informed and voluntary consent after disclosure

(a)   in writing, provided that, where more than one person consents, each signs the same or a separate document recording the consent, or

(b)   orally, provided that each person consenting receives a separate written communication recording their consent as soon as practicable.

*What if the law firm and lawyer are actually acting for the said former client and referring client on an existing matter - making the referring lawyer an existing client ?

About the author:

E.J. Guiste is a trial and appeal lawyer based in the Greater Toronto Area. He defends professionals, judicial officers and students in regulatory proceedings before tribunals and all levels of court on professional misconduct, judicial misconduct and academic misconduct and actions against academic institutions for breaches of the Human Rights Code and other civil wrongs.

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