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Keeping client confidences and acting with commitment

“Lawyers must keep their clients’ confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice.”

Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 at para. 1

This recent decision of the Supreme Court of Canada resolves nearly fifteen years of litigation regarding the lawyer’s role in protecting against anti-money laundering and anti-terrorist financing. This decision is significant to those interested in legal ethics on several points.

Solicitor-client privilege

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the “Act”) and the regulations thereunder (collectively the “Regime”) require that lawyers collect, record and retain certain client information. The Act authorizes search and seizure of documents in the possession of lawyers. The Court concluded that the Regime to be contrary to section 8 of the Charter for failure to provide sufficient protection to solicitor-client privilege.

A number of significant points were made by the majority. The first is the reiteration from Lavallee[i] at para. 36 that “A law office search power is unreasonable unless it provides a high level of protection for material subject to solicitor-client privilege”. The Court responded to the submission that Lavallee did not dictate the outcome in this case because the search and seizure power in question was not “seeking evidence of criminal wrongdoing” but was rather “in connection with an administrative law regulatory compliance regime” by stating inter alia that:

… the reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of the context. The main driver of that elevated expectation of privacy is the specially protected nature of the solicitor-client relationship, not the context in which the state seeks to intrude into that specially protected zone.

While the Court accepted that “… when a search provision is part of a regulatory scheme, the target’s reasonable expectation of privacy may be reduced”, the Court said at para. 44 that:

The core principle of the [Lavallee] decision is that solicitor-client privilege “must remain as close to absolute as possible if it is to retain relevance”: This means that there must be a “stringent” norm to ensure its protection, such that any legislative provisions that interfere with the privilege more than “absolutely necessary” will be found to be unreasonable: …[ii]

While considered in the context of an Act which “has a predominantly criminal law character” whose “regulatory aspects serve criminal law”, it appears that the Court has more generally diminished or eliminated the relevance of the reason for the search and seizure and has emphasized that what is relevant is that solicitor-client privileged information is not protected in the search and seizure[iii].

Independence of the profession

The majority of the Court of Appeal for British Columbia concluded that on one of the principles of fundamental justice relevant to section 7 of the Charter is “the independence of the Bar”. The majority concluded that the Regime deprives lawyers and clients of their liberty interests in a manner which does not accord a principle of fundamental justice namely the independence of the Bar.

Justice Cromwell, for the majority, differentiated between a broad and a narrow version of independence at para. 77 as follows:

According to the broad version, the independence of the bar means that lawyers “are free from incursions from any source, including from public authorities”: … The narrower, more focused version, is anchored in concern about state interference with the lawyer’s commitment to the client’s cause. This narrower version, as I see it, boils down to the proposition that the state cannot impose duties on lawyers that interfere with their duty of commitment to advancing their clients’ legitimate interests. …

The majority of the Court of Appeal placed “great stress on independence of the bar as it relates to self-regulation of the legal profession”. Justice Cromwell was not prepared to decide whether self-regulation of the profession is a principle of fundamental justice either stating at para. 86 that:

While the Court of Appeal and the Federation place great stress on independence of the bar as it relates to self-regulation of the legal profession, I do not find it necessary or desirable in this appeal to address the extent, if at all, to which self-regulation of the legal profession is a principle of fundamental justice. As LeBel J. [has] pointed out… self-regulation is certainly the means by which legislatures have chosen in this country to protect the independence of the bar … But we do not have to decide here whether that legislative choice is in any respect constitutionally required. Nor does the appeal require us to consider whether other constitutional protections may exist in relation to the place of lawyers in the administration of justice.

Some will regret that the Court did not find self-regulation to be constitutionally protected thereby avoiding other forms of regulation such as in Australia and England where self-regulation has been lost. While I am a supporter of self-regulation, my view is that this is the better result. Good self-regulation may well be the best approach but other forms of independent regulation would be better than bad self-regulation. If the profession does not regulate well then there should be a risk of loss of self-regulation. And there is no doubt that lawyers are conflicted by their self-interest in some important respects. This conflict is mitigated to some extent by the risk of loss of self-regulation – and loss of self-regulation could be necessary depending on the nature and extent of self-interested self-regulation.

The duty of commitment as a principle of fundamental justice

The majority concluded at para. 103 that the narrow version of independence of the bar is a principle of fundamental justice stating:

In the context of state action engaging s. 7 of the Charter, … (subject to justification) the state cannot impose duties on lawyers that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person, fully apprised of all of the relevant circumstances and having thought the matter through. The paradigm case of such interference would be state-imposed duties on lawyers that conflict with or otherwise undermine compliance with the lawyer’s duty of commitment to serving the client’s legitimate interests.

It is on this point that the majority and the minority (the Chief Justice and Justice Moldaver) disagreed. The minority did not accept that commitment was a principle of fundamental justice and were inclined to the view that considering protection of solicitor-client privilege as a principle of fundamental justice provided a better resolution of the section 7 analysis. The minority concluded at para. 119 that:

In our view, this “principle” lacks sufficient certainty to constitute a principle of fundamental justice: …The lawyer’s commitment to the client’s interest will vary with the nature of the retainer between the lawyer and client, as well as with other circumstances. It does not, in our respectful opinion, provide a workable constitutional standard.

In considering whether the duty of commitment is a legal principle, as opposed to an important interest or a policy goal, Justice Cromwell observed at para. 91 that:

… The duty of commitment to the client’s cause has been recognized by the Court as a distinct element of the broader common law duty of loyalty and thus unquestionably is a legal principle:

However, Justice Cromwell took care to emphasize that the scope of the duty of commitment is limited. At para. 93, he provided some examples of the bounds of the duty:

Of course the duty of commitment to the client’s cause must not be confused with being the client’s dupe or accomplice. It does not countenance a lawyer’s involvement in, or facilitation of, a client’s illegal activities. Committed representation does not, for example, permit let alone require a lawyer to assert claims that he or she knows are unfounded or to present evidence that he or she knows to be false or to help the client to commit a crime. The duty is perfectly consistent with the lawyer taking appropriate steps with a view to ensuring that his or her services are not being used for improper ends.

On the question of whether there is sufficient consensus permitting the conclusion that the duty of commitment is a fundamental principle, Justice Cromwell said at paras. 96 and 97 that:

Clients — and the broader public — must justifiably feel confident that lawyers are committed to serving their clients’ legitimate interests free of other obligations that might interfere with that duty. Otherwise, the lawyer’s ability to do so may be compromised and the trust and confidence necessary for the solicitor-client relationship may be undermined. This duty of commitment to the client’s cause is an enduring principle that is essential to the integrity of the administration of justice. In Neil, the Court underlined the fundamental importance of the duty of loyalty to the administration of justice. The duty of commitment to the client’s cause is an essential component of that broader fiduciary obligation. …

The duty of commitment to the client’s cause is thus not only concerned with justice for individual clients but is also deemed essential to maintaining public confidence in the administration of justice. Public confidence depends not only on fact but also on reasonable perception. It follows that we must be concerned not only with whether the duty is in fact interfered with but also with the perception of a reasonable person, fully apprised of the relevant circumstances and having thought the matter through. The fundamentality of this duty of commitment is supported by many more general and broadly expressed pronouncements about the central importance to the legal system of lawyers being free from government interference in discharging their duties to their clients.

It is particularly noteworthy is that independence from obligations and government interference that might interfere with service of legitimate client interests is seen as important not just to the trust and confidence of individual clients but also to public confidence in the administration of justice.

It is also noteworthy that Justice Cromwell has placed commitment both as a principle essential to the administration of justice and as a fiduciary obligation. This suggests that Neil, McKercher and Federation of Law Societies may be seen as establishing that the lawyer’s duty of loyalty is founded both in fiduciary law and in the law protecting the administration of justice.

In paras. 81, Justice Cromwell notes two types of harm to clients:

The duty of lawyers to avoid conflicting interests is at the heart of both the general legal framework defining the fiduciary duties of lawyers to their clients and of the ethical principles governing lawyers’ professional conduct. This duty aims to avoid two types of risks of harm to clients: the risk of misuse of confidential information and the risk of impairment of the lawyer’s representation of the client …

In paras. 82 and 83, Justice Cromwell discusses the common underlying basis for protection of solicitor-client privilege and commitment stating inter alia that:

The question now is whether another central dimension of the solicitor-client relationship — the lawyer’s duty of commitment to the client’s cause — also requires some measure of constitutional protection against government intrusion. In my view it does, for many of the same reasons that support constitutional protection for solicitor-client privilege. “The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system”: … These words, written in the context of solicitor-client privilege, are equally apt to describe the centrality to the administration of justice of the lawyer’s duty of commitment to the client’s cause. A client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it: The lawyer’s duty of commitment to the client’s cause, along with the protection of the client’s confidences, is central to the lawyer’s role in the administration of justice.

Echoing the reasons of Justice Binnie in Neil, Justice Cromwell has placed client confidence in their lawyers as “part of the legal system itself” and not “merely ancillary” to it. The protection of client confidences and commitment to the client’s cause are clearly said both to be central to the lawyer’s role in the administration of justice. These are important statements that will no doubt be repeated in future case law and not just in Charter cases.

The application of section 7 of the Charter

In order for section 7 of the Charter to be engaged, it is necessary that state deprivation of a person’s life, liberty or security be in issue.

Justice Cromwell finds that the liberty interests of the lawyer are engaged by the Regime as “The scheme limits lawyers’ liberty by punishing with imprisonment the failure to comply with its requirements”. Justice Cromwell reasons that “It is not necessary to determine whether the liberty interests of clients are infringed”. The Court of Appeal however also found that the liberty of the client was in issue as a purpose of the Regime is to establish a paper trail for enforcement purposes including criminal law sanction.

The reliance by the majority on the lawyer’s rights is curious. One might think that analysis of the right not to be deprived of liberty except in accordance with the principles of fundamental justice would consider fundamental justice as it relates to the deprivation. It seems a strained interpretation to consider principles of fundamental justice that protect third parties under section 7.

This is perhaps results-driven reasoning. Framing the issue in terms of lawyer liberty establishes a much broader protection than would focus only on client liberty. The lawyer-focused approach protects clients from loss of commitment by the state by means that deprive the lawyer of life, liberty of security of the person (but not where lesser means are used). On the other hand, a client-focused approach only protects against loss of commitment where the client’s life, liberty or security of the person is at risk of deprivation.

Leaving aside the logic of the reasoning, the effect is to establish that the state may not, without proper justification, interfere with the duty of commitment owed to clients by means of loss of loss of life, liberty or security of the lawyer. It seems logical that Charter scrutiny of impaired commitment is a engaged where a client’s loss of life, liberty or security is at risk of deprivation by the state even where commitment is impaired by means not involving the lawyer’s life, liberty or security of the person.

However (and obviously), there is no Charter protection of the duty of commitment where deprivation of the life, liberty or security of neither the lawyer nor the client is in issue.

Still, framing the duty of commitment as a principle of fundamental justice is an important statement of policy that will no doubt inform the common law and statutory interpretation even where Charter rights are not in issue.

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[i] Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209

[ii] Citations in this and following quotes are omitted.

[iii] Justice Cromwell took care at para. 68 to say “I add this. The issues that would arise in the event of a challenge to professional regulatory schemes are not before us in this case. Different considerations would come into play in relation to regulatory audits of lawyers conducted on behalf of lawyers’ professional governing bodies. The regulatory schemes in which the professional governing bodies operate in Canada serve a different purpose from the Act and Regulations and generally contain much stricter measures to protect solicitor-client privilege.”

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Too much information!

Discussions of legal ethics and protection of information often don’t distinguish between confidential information and privileged information. The seminal case of Macdonald Estate v. Martin[i] provides a good example. As Justice Sopinka put it:

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? (2) Is there a risk that it will be used to the prejudice of the client?

Of course, not all confidential information received by a lawyer in the context of a solicitor and client relationship is privileged. While confidential communications between lawyer and client for the purposes of obtaining and providing legal assistance are protected by solicitor-client privilege, confidential communications with third parties are generally not.

And when Macdonald Estate was decided, the Canadian courts had not yet clearly delineated between solicitor-client privilege and litigation privilege. We now understand that confidential communications with third parties for the dominant purpose of litigation are generally protected by litigation privilege but not by solicitor-client privilege[ii].

The Canadian law of privilege is also clearer with respect to “common interest” which, in certain circumstances, permits privileged information to be shared on a confidential basis without waiver of privilege. Sharing privileged information between parties in litigation with a common interest is the obvious example but sharing privileged information with a view to completing commercial transactions is another[iii].

The Macdonald Estate principles have been applied in new circumstances over the last two decades. Macdonald Estate itself was a transferring lawyer case in which the “virus” of confidential information came with a transferring lawyer who had previously acted on the other side in ongoing litigation.

The Court of Appeal for Ontario applied the Macdonald Estate principles to acting against former clients in Chapters Inc. v. Davies, Ward & Beck LLP [iv]. In Celanese Canada Inc. v. Murray Demolition Corp.[v], a law firm was disqualified to ensure that privileged information of the opposing party improperly acquired through an Anton Pillar order was not accessed. In Stewart v. Humber River Regional Hospital[vi], the Court of Appeal for Ontario disqualified a law firm that had learned privileged information from the opposing party in litigation as a result of retaining an expert witness previously retained by the other side.

These cases demonstrate that what is in issue is the protection of the administration of justice rather than just the duties owed by lawyers to their clients. In Macdonald Estate, Celanese and Humber River, the law firm was disqualified at the instance of the opposing party and not at the instance of their own client. Justice Goudge made this point clearly in Humber River when he said at paras. 23 and 24:

The starting point is that the courts have an inherent supervisory jurisdiction that extends to the removal of solicitors from the record where their conduct of legal proceedings would adversely affect the administration of justice (MacDonald Estate, at p. 1245 S.C.R.).

Where solicitor-client information comes into the possession of the opposing party, this creates a serious risk to the integrity of the administration of justice. …

While the cases have not yet examined whether the Macdonald Estate principles apply with equal vigour to litigation privileged information as to solicitor-client privileged information, one would think that the same result would apply despite the greater protection applied to solicitor-client information as the integrity of the administration of justice requires that the opposing party not have access to either type of privileged information.

While not yet decided so far as I am aware, I would expect that the Macdonald Estate principles would apply to protect privileged information obtained under the “common interest” exception as well. For example, if a lawyer were to receive privileged information about ongoing litigation in the context of a failed asset purchase, it would seem to follow that the lawyer could not turn around and act for the opposite party in that litigation.

But do the Macdonald Estate principles apply to confidential information that is not privileged? Reviewing Macdonald Estate, Justice Sopinka refers throughout to confidential information rather than to privileged information although he does refer to “confidential information attributable to a solicitor and client relationship”. This phrase is somewhat ambiguous. It would seem to apply to lawyer-client communications. Yet a lawyer receiving non-privileged but confidential information from an opposing party in a transactional matter will have received confidential information as a result of a solicitor and client relationship.

Given the policy analysis in Macdonald Estate, it seems to me that Justice Sopinka was intending to refer to solicitor client privileged information. As he said in discussing the Legal Ethics – Policy Considerations:

… Nothing is more important to the preservation of this relationship than the confidentiality of information passing between a solicitor and his or her client. The legal profession has distinguished itself from other professions by the sanctity with which these communications are treated. The law, too, perhaps unduly, has protected solicitor and client exchanges while denying the same protection to others. This tradition assumes particular importance when a client bares his or her soul in civil or criminal litigation. Clients do this in the justifiable belief that nothing they say will be used against them and to the advantage of the adversary. Loss of this confidence would deliver a serious blow to the integrity of the profession and to the public’s confidence in the administration of justice.

From this, the point of MacDonald Estate can be seen as being to ensure that a client’s privileged information be protected by disqualification against being used against them and that non-privileged confidential information was not intended to be protected. It is also reasonable to conclude that it is only the privilege-holder who is protected under the Macdonald Estate principles.

While this may all seem a bit arcane, the questions of the nature of the information properly protected under MacDonald Estate principles and who is entitled to protection are recently raised in two separate contexts.

The first is the recent amendment of the transferring lawyer rule in the Federation of Law Societies’’ Model Code of Professional Conduct. Model Rule 3.4-17 previously defined confidential information to mean “information that is not generally known to the public obtained from a client”. Practically, this meant solicitor-client privileged information as information obtained from third parties was not included in the definition. This definition is no longer used and Model Rule 3.4-18 is now triggered when either (emphasis added):

(a) It is reasonable to believe the transferring lawyer has confidential information relevant to the new law firm’s matter for its client; or

(b) the new law firm represents a client in a matter that is the same as or related to a matter in which the a former law firm represents or represented its client (“former client”); (ii) the interests of those clients in that matter conflict; and (iii) the transferring lawyer actually possesses relevant information respecting that matter.

While perhaps not intended, the transferring lawyer rule is engaged whenever a transferring lawyer has relevant confidential information, whether privileged or not, whether or not obtained from a client and whether or not obtained in the context of a lawyer-client relationship. The transferring lawyer model rule, as amended, may now have a much broader ambit. While it is seems obviously good to protect confidential information, it is important to recognize that the transferring lawyer rule can result in disqualification of the lawyer in an existing matter. It is startling to think that a client could lose his or her lawyer to protect information that is not privileged and not necessarily learned in the course of any lawyer client relationship.

The second is a recent case in which leave to appeal a disqualification order was recently granted by the Ontario Divisional Court in Performance Diversified Fund v. Flatiron et al[vii]. In Flatiron, an employee consulted a lawyer about employment issues and, in that context, apparently disclosed confidential information about the business of the employer. The law firm was disqualified on the motion of the employer. This raises interesting questions.

If viewed as a matter of the law of confidential information, it is understandable that the court could intervene to protect against the misuse of an employer’s confidential information disclosed by an employee to a third party. But if viewed as a matter of the law of privileged information or the protection of the administration of justice, it is difficult to see why the employer would have right to seek to protect the privilege rights of the employee. Relevant confidential information is ordinarily accessible by discovery in litigation while privileged information is not. The employer’s confidential information did not become privileged by communication by the employee to his lawyer.

My view is that the Macdonald Estate principles properly apply, given their policy basis, to the protection of privileged information at the instance of the privilege-holder. Where privileged information is not at issue and where the rights of a privilege-holder are not put at risk, the administration of justice is not imperilled if the lawyer continues to act – and there is no basis to require that another party be deprived of the lawyer of their choice – who may well be expensive to replace.

This discussion may illustrate what may be seen as a lack of clarity in our thinking around protection of information under the law of lawyers and the Model Code. Some protected information under the Model Code need not even be confidential information (e.g. Model Rule 3.3-1). Some protected information may not need to be privileged (e.g. Model Rule 3.4-18(c)). The Model Code does not distinguish between confidential information and privileged information and is thought by some to imply that privileged information may be used where the law of privilege would not permit its use (e.g. Model Rule 3.3-4(b) and (c)).

It seems to me that our ethical rules and the law could benefit from greater precision so that we protect what is properly protected in support of the administration of justice.

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[i] Macdonald Estate v. Martin, [1990] 3 SCR 1235

[ii] Blank v. Canada (Minister of Justice), [2006] 2 SCR 319

[iii] General Accident Assurance Company v. Chrusz (1999), 45 OR (3d) 321 (OCA)
Maximum Ventures Inc. v. De Graaf, 2007 BCCA 510

[iv] Chapters Inc. v. Davies, Ward & Beck LLP (2001), 52 OR (3d) 566

[v] Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 SCR 189

[vi] Stewart v. Humber River Regional Hospital, 2009 ONCA 350

[vii] Performance Diversified Fund v. Flatiron et al, 2014 ONSC 6892

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Candour

I Gotta Tell Ya, It’s Complicated! Candour Owed to Clients

In R. v. Neil, Justice Binnie stated that the duty of candour was an aspect of the duty of loyalty. As Justice Binnie put it, an aspect of the duty of loyalty is

a duty of candour with the client on matters relevant to the retainer

The fiduciary duty of candour was the basis for the earlier decision of the Supreme Court of Canada with respect to physicians in McInerney v. MacDonald,

While not previously said quite so plainly, it has long been clear that fiduciaries owe a duty of candour to their beneficiaries. As the B.C. Court of Appeal said in Ocean City Realty Ltd. v. A & M Holdings Ltd.2 (cited with approval by the Court of Appeal for Ontario in Raso v. Dionigi3):

The obligation of the agent to make full disclosure … includes “everything known to him respecting the subject matter of the contract which would be likely to influence the conduct of his principal” (Canada Permanent Trust Co. v Christie) or, as expressed in 1 Hals., 3rd ed, p. 191, para. 443, everything which “. . would be likely to operate upon the principal’s judgment”. ..

This fiduciary duty is mirrored in the Federation of Law Societies Model Code by Rule 3.2-2 which states:

When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.

But like many other statements of professional standards that seem obviously true when stated generally, it just isn’t quite that simple in real life.

Let’s start with an easy one. In intellectual property litigation, it is common for confidential information to be disclosed on the basis that the lawyers will have access to the adverse party’s confidential information but their clients will not. This is often, but not always, by court order. Despite the duty of candour, lawyers can withhold this material information to their clients. On one view of this, there is no issue because the client consent is required in the circumstances. But does that mean that the duty of candour can be waived? Is waiver of candour permitted in all circumstances or just in some?

A harder case is inadvertent receipt of privileged information. Here, the lawyer would not have the protected information had things worked out properly. Clearly, the administration of justice requires protection of privileged information4. Does candour require disclosure of what should never have been known? Is client consent required not to disclose?

Law society rules regulate joint retainers requiring that lawyers advise their joint clients that secrets can’t be kept between clients in a joint retainer. If candour can be waived by clients, does this rule apply where clients want secrecy between them for some matters in a joint retainer?

While law society rules are (mostly) about the duties of individual lawyers, fiduciary duties are owed by firms to their clients as well as by individual lawyers. Does the fiduciary duty of candour mean that the firm (i.e. every lawyer in the firm) must disclose everything known by the firm that is material? This is practically impossible of course in a firm of any size. But why isn’t it so nonetheless as a matter of principle? And what about confidentiality screens? If the duty of candour is owed in respect of everything known by the firm, aren’t confidentiality screens per se improper?

One might think that all of this would have been worked out in the jurisprudence somewhere but, if it has been, I can’t find it. So let me sketch out what seem to me to be some of the necessary nuances to the general rule.

First, there are some situations where the administration of justice requires that candour be limited. In these situations, any lawyer would be in the same position. If candour is not limited, justice cannot be done.

Second, it is important to be clear about the nature of the retainer. The duty of candour is limited to matters relevant to the retainer.

Third, candour probably can’t be waived. We know that actual conflicts, as opposed to potential conflicts, can’t 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 lawyer has acted properly.

Fourth, it is unclear whether candour is owed by the firm or just by the lawyers involved in the representation. I think that it must be just the lawyers involved if only as a practical matter. Otherwise, every lawyer in a firm would have to understand every retainer of the firm and consider what information is relevant from every other retainer they have had and from any other source.

Fifth, being in the position of accepting a legal obligation of confidentiality (that is not inherent in the retainer as discussed above) 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 duties … it is his own fault.

Food for thought, I hope.

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1 The duty of candour owed to clients is not to be confused with obligation of candour to the court. The scope of and the basis for these obligations are entirely different.

2 Ocean City Realty Ltd. v. A & M Holdings Ltd. (1987), 36 D.L.R. (4th) 94 (B.C.C.A.)

3 Raso v. Dionigi (1993), 12 OR (3d) 580 (O.C.A.)

4 Protection of the administration of justice sometimes requires disqualification of lawyers who inadvertently receive privileged information of the adverse party. But that is outside of the subject of this column.

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