Kay Rhodenizer – June 2016
CONFLICT OF INTERESTS and WHY DO I GET ASKED SO MANY QUESTIONS WHEN I CALL FOR MY FIRST APPOINTMENT?
Nova Scotia lawyers are required by their Professional Code of Conduct to take “all reasonable steps to avoid circumstances likely to create an actual or perceived conflict of interest.” It is presumed that a lawyer receives confidential client information and breaches duties owed to client by using (or even having the potential to use) that information against a client in any subsequent related matter, unless the former client waives the conflict.
In some cases, even a preliminary inquiry about whether a lawyer can represent you can create a conflict if confidential information is discussed but conflicts can arise in many other ways, sometimes well after a situation where no-one anticipated a future conflict. Some typical family law examples include:
- In 2010 Joe and Jenny are happily married. They want to buy a house. Jenny’s parents verbally agree to pay part of the purchase price as an advance on Jenny’s inheritance and guarantee the mortgage because Joe and Jenny do not qualify on their own. Joe and Jenny pay a lawyer to process the purchase and mortgage. She meets Jenny’s parents to have them sign the mortgage. She does not recommend a written agreement that says what happens if Joe and Jenny separate and/or default on the mortgage. She does not recommend (or perhaps even insist!) that Jenny’s parents get independent legal advice. When Joe and Jenny later separate they default on the mortgage and disagree whether the house equity from the parent’s “gift” belongs to Jenny or should be shared. The only lawyer who has given (or not given) advice to all four people is the real estate lawyer, who also practices family law. During separation negotiations or Court proceedings between Joe and Jenny, this lawyer is a potential witness and should not represent Joe, Jenny or her parents.
- After separation from Jenny, Joe begins living with Ann. She is working and they share joint expenses. Joe brings Ann to meetings with his lawyer to discuss negotiations or court proceedings to deal with Jenny’s support claims. Jenny may be asking for Ann’s financial information or a Court may require it to be produced. Joe and Jenny reach a negotiated settlement. Joe and Ann later separate. Joe asks his former lawyer to try to settle Ann’s claims. Ann feels she gave confidential information to this lawyer. She refuses to waive conflict. She tells Joe if he does not get a new lawyer, she will ask the Court to have the lawyer removed from the file.
It is very frustrating to engage a lawyer and later find out (sometimes well after work has begun) that new counsel must be retained because of a potential conflict so MDW Law asks for preliminary information when responding to requests for appointments so we can check our list of previously represented clients and related parties.
One or more people involved in a current legal matter may now use a different surname than the surname used in past lawyer/client meetings or Court proceedings. Some people have common names that may appear more than once in our conflict list. When calling to ask for representation it is important to give us the full names of all people who may be involved (including past and new partners and past surnames if known) and if you can think of any other situations that might create potential conflicts to discuss them with us.