5.3 Conflicts

Gemma Smyth and Priya Sharma

Conflicts

Have you previously worked in a legal environment? Are you working in a legal environment now? Is there any potential that the cases, clients and issues you worked on or had access to (or were perceived to have access to) prejudice or are adverse in interest to the clients you will see in your placement? If so, it is possible there is a conflict of interest.

It is possible that a conflict arises in a student’s professional life, but it is also possible that personal experiences and relationships create a conflict. Lawyers have positive duties to avoid conflicts of interest. This means students must actively reflect on their past experiences and consider whether a conflict might arise in their new environment. It is also important to consider other placements or internships that a student might be involved in concurrently that might create a conflict, or the appearance of a conflict. Also note that firms and clinics will sometimes rely on students to self-disclose conflicts rather than complete a formal conflicts check process. As such, a student’s self-awareness about this issue is important.

LSO Rules

The LSO defines a conflict as follows:

“The existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer” where a substantial risk means “the risk is significant and plausible, even if it is not certain or even probable that the material adverse effect will occur.”

LSO Rule 3.4-1 states that “a lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this section” (https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct).

As noted above, a lawyer may have personal interest conflicts that can prejudice their work and adversely affect the client if they are not careful about conflicts. Examples of personal conflicts include:

  1. “Matter[s] that the lawyer, the lawyer’s partner or associate or a family member has a material direct or indirect financial interest”
  2. “A judge or lawyer who has a close personal relationship, sexual or otherwise, with a client who is in a family law dispute”
  3. Whether certain information acquired in the course of the lawyer and client relationship may jeopardize the client’s right to have all information concerning his or her affairs held in strict confidence” (https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct).

Carefully consider the client and lawyer relationship as well as the subject matter of the retainer in order to determine if there is a personal matter that can prejudice the lawyer’s ability to advise freely and, in the clients’ best interests. See the commentary under rule 3.4-1 at the following link to explore conflicts further.

Also, note s. 3.2-9 Commentary [3] Lawyers have an ethical duty to “ensure that the client’s interests are not abandoned”. This is particularly salient in a clinic or legal aid context when a client might have no other reasonable prospect of securing legal services.

There is also case law and individual firm practice regarding conflicts, although neither are addressed here. A fulsome discussion of conflicts will be addressed in your legal ethics course. For the purposes of an externship, note that law firms, clinics, and other legal workplaces will have a system for conflicts checks. It is typically completed when a client sets up an appointment to discuss a matter. Keep in mind, however, that conflicts can arise at any time throughout a case when new witnesses or other actors become involved. When engaged with direct client service, ensure you understand the system of conflicts checks both before intake and through the life of a file.

Conflicts play out differently in smaller and larger communities, and there are contextual factors at play. Checking with your supervisor if you suspect a conflict is the best approach.

The Law Society of Ontario’s Guidelines

The LSO clearly outlines a step-by-step process for determining if a conflict of interest exists in a firm conflict.

Step 1: Determine who your client is.

  • As defined in the Rules 1.1-1 section of the LSO, a client is a person who (1) “consults a lawyer and on whose behalf the lawyer agrees to render legal services; or” (2) “having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf”
  • Informal lawyer-client relationships are possible if there has been a consultation despite the lack of a retainer.

Step 2: Consider the nature of your retainer and the duties to your client arising from your retainer.

Step 3: determine whether the duties that you owe to current clients, former clients and any third persons might affect the duties owed to your client. Similarly, determine whether you have any personal interests that might affect the duties owed to your client.

Step 4: Determine if there is a substantial risk that your duty of loyalty to the client or the representation of the client would be materially and adversely affected by your own interest or your duties to another client (Current, former or joint clients) or a third person. If so, there is a conflict of interest.

Step 5: If you reasonably believe that you are able to represent each client without having a material adverse effect on the duties owed to the other client, then you may act if there is consent from all of the affected clients, which consent must be fully informed and voluntary after disclosure

 

Reflection Questions

  1. How are conflict checks conducted in your externship placement? Who conducts these conflicts checks?
  2. How can you ensure ongoing awareness of conflicts throughout your placement?

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Learning in Place (3rd Edition) Copyright © 2024 by Gemma Smyth is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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