In May 2016, Justice Bondy of the Ontario Superior Court of Justice quietly released an important decision. A decision that every civil litigator should know because the principles enunciated in this case seem to elude many lawyers. Maybe greed blinds them, maybe wishful thinking envelopes them, or maybe it never occurs to them that they are in a conflict of interest. Either way, this pervasive behaviour is bringing the administration of justice into disrepute.
Far too often, plaintiff lawyers represent an injured child and his/her parents, who are also defendants by counterclaim. This is a conflict of interest. And in the case of Al Bidery v Cazzola, 2016 ONSC 3126, Justice Bondy sets out why.
In Al Bidery, defence counsel moved to have plaintiffs’ counsel removed as counsel of record based on a conflict of interest. Plaintiffs’ counsel represented a young child that was injured in a motor vehicle accident when she ran out onto the street from her house. The defendant driver counterclaimed against the child’s parents.
Justice Bondy proclaimed that to continue to represent both the parents and the child in this case was a conflict of interest. The counterclaim put the child’s interests at odds with the interests of her parents in their capacity as defendants. At paragraphs 19 and 24, Justice Bondy wrote:
 A “bright line” is provided by the general rule “that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other.”: see R. v. Neil, 2002 SCC 70 (CanLII),  3 S.C.R. 631,  S.C.J. No. 72, at para. 29. [Neil] This bright line rule amounts to a clear prohibition: see McKercher, at para. 26. The rule is designed to ensure that “a divided loyalty does not cause the lawyer to soft-pedal his or her representation of a client out of concern for another client: see McKercher, at para 43; and Neil, at para. 19. [Emphasis added]
 …Plaintiffs’ counsel suggested that the counterclaim be dismissed in exchange for an agreement that the plaintiffs’ claims be limited to the damages attributable to the fault of the defendants Brandon Cazzola and Paulo Conchacha, and defendants by counterclaim, Nada Nader, John Doe and Jane Doe. Defense counsel pointed out that if that were done, Sora would be denied not only recovery from her parents, but also recovery from tortfeasors jointly and severally liable for any negligence found on the part of her parents: see s. 1, Negligence Act, R.S.O. 1990, c. N.1. Plaintiffs’ counsel ultimately resiled from that suggestion. I find plaintiffs’ counsel’s suggestion on behalf of the parents clearly contrary to Sora’s interests. I find this to be a clear example of the “soft-pedaling” referred to in McKercher.
In addition to violating the duty of loyalty, representing both the child and the parents violated the duty of confidentiality. At paragraphs 34-36, Justice Bondy wrote:
 I begin with the observation that rule 3.4-2 of the Rules of Professional Conduct, provides that a lawyer shall not represent a client in a matter when there is a conflict of interest unless there is express or implied consent from all clients. Further, it must be reasonable for the lawyer to conclude that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client. An express consent must be fully informed and voluntary after disclosure.
 There was no evidence before me of such an express consent.
 There may be implied consent where, for example, the matters are unrelated. Another example is when the lawyer has no relevant confidential information from one client that might reasonably affect the representation of the other client. In this case, the matters are clearly related and plaintiffs’ counsel is privy to confidential information of both the child and her parents. To be clear, I am not bound by the Rules of Professional Conduct, but they do offer some insight into the standard of conduct expected as between lawyers and their clients.
I would add, even if express consent is provided, it is still a conflict of interest to represent both the child and the parents. How can a lawyer think that he or she is able to represent each client without adversely affecting the other?
The case of Al Bidery should serve as a guiding light to all counsel. A lawyer cannot represent both the plaintiff and the defendant within the same action.