Conflicts of Interest

From Criminal Law Notebook
This page was last substantively updated or reviewed June 2021. (Rev. # 92186)

General Principles

The "unifying theme" of conflict of interest rules is one of "divided loyalties and duties."[1]

Purpose

The mischief addressed by the rules of conflict of interest is to prevent the disclosure of confidential information of previous related parties and to prevent counsel from putting himself in a situation where loyalty may be conflicted between present and past parties.[2]

Timing of Raising Issue

Issues of conflict of interest of trial counsel can be raised at any point including on appeal after trial. [3]

Requirements

The party alleging the conflict must demonstrate that:[4]

  1. an actual conflict of interest exists
  2. there is “some impairment of counsel’s ability to represent effectively the interests” of the accused; and
  3. the accused has been “denied the right to make full answer and defence” and “a miscarriage of justice has occurred.”

The test for a "disqualifying conflict of interest" has been alternatively stated as requiring:[5]

  1. Did the lawyer receive information attributable to a solicitor and client relationship, relevant to the matter at hand; and
  2. Is there a risk that it could be used to prejudice the client?

Where it is shown that a lawyer had previously been retained on a related matter, the onus shifts to the lawyer "to prove that no information was provided that could be relevant."[6] The test is what "would a reasonably informed member of the public be satisfied that the new retainer will not give rise to a conflict of interest."[7]

The court must consider the public interest including the public's confidence in the administration of justice. The confidence is undermined by the appearance of an unfair trial such as a cross-examination based on information obtained from prior involvement with the witness.[8]

The court must also consider the lawyer's "duty of loyalty" as well as confidentiality and privilege.[9]

The applicant does not need to establish that the verdict would have been different but for the conflict. [10]

Effect on Right to Choice of Counsel

The accused's right to counsel of choice is limited by the requirement that there be no disqualifying conflict of interest.[11] The standard require to limit the right to counsel is a high one as "a litigant should not be deprived of his or her choice of counsel without good cause."[12]

Procedure

A procedure suggested to consider conflicts goes as follows:[13]

  1. It is clear that the courts have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, in the exercise of the court’s supervisory authority over members of the bar; [14]
  2. The courts must be concerned not only with actual conflicts but also with perceived or potential conflicts that develop as a trial unfolds;
  3. The test must be such that the public, represented by the reasonably informed person, must be satisfied that no use of confidential information would occur;
  4. Litigants ought not to be lightly deprived of their chosen counsel, without good cause or for compelling reasons;
  5. A potential disqualifying conflict of interest must first be established before it can be weighed against the fundamental right to the accused’s choice of counsel;
  6. Typically, these cases require two questions to be answered:
    1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? and
    2. Is there a risk that it will be used to the prejudice of the client? Consideration of these two questions is case-specific.
  7. Disqualification of trial defence counsel can be disruptive, and it may require a trial be adjourned in order to allow new counsel to bring themselves “up to speed”.

The courts should balance the accused's right to counsel of choice, public policy, the interest in the administration of justice and fairness.[15]

Judicial Intervention

A judge may not direct that counsel not act on behalf of the accused unless there is a "realistic risk of a conflict of interests."[16]

The court may need to speculate on what risks may arise at trial that could cause a conflict.[17]

Consequence of Forced Withdraw

Requiring counsel to withdraw is not a disciplinary matter, it is preventative to protect the administration of justice and ensure trial fairness.[18]

Accused's Choice of Conflicted Counsel

The right to choice of counsel is not an absolute right.[19]

The accused has not right to counsel who is in conflict.[20]

Effect of Codes of Conduct

The courts are not obliged to enforce codes of conduct. The codes are only statements of public policy.[21]

Duty to Previous Clients

The main duty Counsel as to previous clients is the duty not to misuse confidential information.[22]

Examples

There was no conflict where defence counsel was present at the party where an assault occurred.[23]

  1. Paul M Perell, Conflicts of Interest in the Legal Profession (1995) at 5.
  2. R v Sandhu, 2011 BCSC 1137 (CanLII), 279 CCC (3d) 327, per Fitzpatrick J
  3. R v Widdifield, 1995 CanLII 3505 (ON CA), OR (3d) 161, per Doherty JA at 169
  4. R v Sherif, 2012 ABCA 35 (CanLII), 545 WAC 61, per Hunt JA
    R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA
  5. R v McCall, 2013 ONSC 4157 (CanLII), per Gunsolus J, at para 26
  6. McCall, supra, at para 27
  7. McCall, supra, at para 27
    Widdifield, supra
    See also MacDonald Estate, supra
  8. McCall, supra, at para 30
    R v Robillard, 1986 CanLII 4687 (ON CA), [1986] OJ No 261 (ONCA), per Lacourciere JA, at p. 5
    R v Brissett, 2005 CanLII 2716 (ON SC), [2005] OJ No 343, per Hill J, at para 39 - a lawyer should not use information obtained from a former client to cross-examine them on a future case.
  9. McCall, supra, at para 31
    MacDonald Estate, supra, at para 41
    See also R v Billy, 2009 CanLII 63957 (ON SC), [2009] OJ No 4737 (SCJ), per Pomerance J, at paras 24 to 25
  10. Sherif, supra, at para 13 (no conflict found)
  11. McCall, supra, at para 24
    R v McCallen, 1999 CanLII 3685 (ON CA), 131 CCC (3d) 518, per O'Connor JA, at paras 68 to 72
    Billy, supra, at para 19
  12. MacDonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, per Sopinka J
  13. Brissett, supra
  14. Macdonald Estate v Martin, supra, at p. 1245
  15. R v Speid, 1983 CanLII 1704 (ON CA), 8 CCC (3d) 18, per Dubin JA
  16. R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA, at p. 238
  17. WW, ibid.
  18. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 35
  19. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  20. Robillard, supra, at para 10
  21. Cunningham, supra, at para 38
  22. Canadian National Railway Co. v McKercher LLP, 2013 SCC 39 (CanLII), [2013] 2 SCR 649, per McLachlin CJ (9:0)
  23. R v Karmis, 2008 ABQB 525 (CanLII), 177 CRR (2d) 232, per MacLeod J

Waivers

An irrevocable waiver of a conflict of interests by the accused, after having received independent legal advice, will usually be sufficient to permit counsel to be retained.[1]

However, the existence of a conflict of interest without waiver will generally result in the disqualification of counsel.[2]

A revocable waiver can also give rise to disqualification.[3]

  1. see e.g. R v Hill, 2014 ABQB 298 (CanLII), per Wilson J
  2. Hill, supra, at para 31
    R v Leask, (1996) 1 CR (5th) 132 (*no CanLII links)
    R v Werkman, 1997 CanLII 14735 (AB QB), 6 CR (5th) 221, per Ritter J
  3. see Hill, supra, at para 31

Representing Co-Accused

There is a "heavy onus" on the accused to ensure that there is no conflict when representing multiple accused is a single matter.[1]

There is no fixed rule preventing a lawyer from representing multiple co-accused. [2]

When representing multiple co-accused there is always the risk of conflict.[3] The presence of this conflict may prevent counsel from exploring plea negotiations and the possibility of one counsel testifying against another, presenting evidence incriminating the co-accused, or making sentencing submissions that only mitigate for one and not the other.[4]

A co-accused's counsel may be enjoined from switching clients and representing an accused regardless of the consent of the accused.[5]

It is expected that before accepting a retainer from a co-accused, counsel must "fully disclose to both [co-accused] the issues and risks associated with concurrent representation" as well as get both of their informed consent and conclude that they can represent both co-accused without adversely affecting the each other.[6]

Counsel have an obligation to advise them to emphasize evidence that points to co-accused and exonerates them.[7]

Where there is concurrent representation of two co-accused, the issue to be determined with any allegation of divided loyalty is whether "there was actual conflict of interests" and whether "one of the co-accused did not receive effective representation."[8] This test applies equally to circumstances where the two accused are involved in different matters.[9]

Consequence of Being in Conflict

Where counsel is in conflict, their representation becomes tainted by a divided loyalty.[10]

  1. R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA
  2. WW, ibid., at p. 13
    R v Silvini, 1991 CanLII 2703 (ON CA), 68 CCC (3d) 251, per Lacourciere JA
  3. Silvini, ibid.
  4. Silvini, ibid.
  5. R v Quiriconi, 2011 BCSC 1737 (CanLII), per Rogers J
  6. R v Baharloo, 2017 ONCA 362 (CanLII), 348 CCC (3d) 64, per Brown JA, at para 51
  7. R v Thanigasalam, [2007] OJ No 5374 (Ont. C.J.) (*no CanLII links) , at para 16
  8. Baharloo, supra, at para 53
  9. Baharloo, supra, at para 53
  10. Baharloo, supra, at para 52

Duty of Loyalty

The duty of loyalty is the foundation of the solicitor-client relationship.[1] This duty includes the duty of confidentiality.[2]

This duty also includes the duty to avoid conflicting interests.[3] Defence counsel owe a duty to the client to avoid conflicts of interest.[4] This rule protects against:[5]

  1. prejudice arising from the "misuse of confidential information obtained from a client"; and
  2. prejudice arising from the counsel "soft peddling" the representation of one client to the benefit of others, including the other client.

The duty of loyalty requires that the counsel put the client's business interests before the counsel's business interests.[6]

Counsel has a duty to "not place herself in a situation that jeopardizes her effective on-going representation of [a] client."[7] There is "no room for doubt" in clients mind as to where the lawyer's loyalty lies.[8]

Once a lawyer is retained, the client has a right to believe that silence from counsel is affirmation that there are no conflicts.[9]

Test for Breach of Duty of Loyalty

A lawyer's acceptance of a new retainer will breach the duty of loyalty of a current client where it is determined:[10]

  1. that the client's "interests are directly adverse to the immediate interests of another current client" or
  2. the lawyer does not reasonably believe he is able to represent each client without adversely affecting the other.

There will be no conflict where both clients consent to the joint representation, after receiving full disclosure and independent legal advice.[11]

This first stage is considered the "bright line" rule.[12]

  1. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  2. Cocks, ibid., at para 10
  3. R v Baharloo, 2017 ONCA 362 (CanLII), 348 CCC (3d) 64, per Brown JA, at para 31
  4. R v Faudar, 2021 ONCA 226 (CanLII), per Tulloch JA, at para 55
  5. Faudar, ibid., at para 56
    Baharloo, ibid., at para 31 (conflict of interest can create prejudice for the client where counsel "'soft peddles' his representation of a client in order to serve his own interests, those of another client, or those of a third party".)
    Canadian National Railway Co v McKercher LLP, 2013 SCC 39 (CanLII), [2013] SCR 649, per McLachlin CJ, at para 23
  6. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 24( “Loyalty includes putting the client’s business ahead of the lawyer’s business”)
  7. Canadian National Railway, supra, at para 23
  8. R v McCallen, 1999 CanLII 3685 (ON CA), 43 OR (3d) 56, per O'Connor JA, at p. 67 (“[t]here should be no room for doubt about counsel’s loyalty and dedication to the client’s case”)
    Baharloo, supra, at para 32
  9. Baharloo, supra, at para 32
    Strother v 3464920 Canada Inc, 2007 SCC 24 (CanLII), [2007] SCR 177, per Binnie J, at para 55
  10. Neil, supra Baharloo, supra, at para 34
  11. Baharloo, supra, at para 34
  12. Neil, supra, at para 29

Duty of Confidentiality

Every lawyer has a duty of confidentiality to his client. This duty extends beyond the duration of the legal relationship.[1]

Any lawyer who has obtained confidential information from a client can never act against that client.[2]

A lawyer may act against a former client where "a reasonable member of the public who is in possession of the facts would conclude that no unauthorized disclosure of confidential information has occurred or would occur."[3]

The rule intends to balance the three factors of:[4]

  1. the need to maintain the high standards of the legal profession and the integrity of the justice system;
  2. the right of litigants not to be deprived of their choice of counsel without good cause; and,
  3. permitting reasonable mobility in the legal profession.

Courts should discourage the use of these conflict rules from being used as a weapon or tactic to obstruct proceedings.[5] As such the mischief must be real and not speculative.[6]

Where the conflicted lawyer moves to a different firm, the other lawyers in the new firm are not necessarily conflicted as well. There will only be a conflict if:[7]

  1. the lawyer at the new firm received confidential information attributable to the solicitor-client relationship
  2. is there a risk that the confidential information could be used to prejudice the client

There is a "strong inference" that lawyers working together will share confidential information about clients.[8] This inference is rebutted by "clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur by the ‘tainted lawyer’ to the member or members of the firm who are engaged against the former client."[9]

  1. Canadian National Railway v McKercher, 2013 SCC 39 (CanLII), [2013] 2 SCR 649, per McLachlin CJ, at para 23
  2. R v Imperial Tobacco Canada Limited, 2013 BCSC 1963 (CanLII), per N Smith J, at para 22 Macdonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, per Sopinka J, at p. 1261 ("No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out has been gleaned from the client and what was acquired elsewhere.")
  3. Martin, supra, at p. 1263
  4. Martin, supra
    Imperial, supra, at para 25
  5. Imperial, supra, at para 27
  6. Imperial, supra, at para 28
  7. Martin, supra, at p. 1260
    McKercher, supra, at para 24
  8. Imperial, supra, at para 24
    Martin, supra
  9. Martin, supra

See Also