Conflicts Rules Leave Room for (Careful) Collegiality

This article is by Nora Rock, corporate writer and policy analyst at LAWPRO

Consulting with more experienced colleagues to confirm that you’re on the right track in resolving a problem is natural and commendable in any profession. Working in isolation is inefficient, and leads to preventable errors. Without access to information about others’ experience, we’re forced to make our own mistakes. For this reason, sole practitioners are routinely encouraged to seek out mentors and advisers from among the broader bar.

But what if every time a colleague outside your firm asked for your opinion on a legal issue, you became conflicted out of representing any party whose interests were opposed to those of that colleague’s clients?

You’d stop giving advice, that’s what.

In a decision that recognizes the importance of fostering informal mentorship, the Ontario Superior Court held (in 1623242 Ontario Inc. v Great Lakes Copper Inc., 2014 ONSC 782 (CanLII) ) that a lawyer who provides a general opinion about the state of the law to a colleague without being privy to the specific details of the colleague’s case or the identity of his or her client and is later retained by a client opposed in interest to the colleague’s client is not thereby disqualified from representing his own clients.

In 1623242 Ontario Inc., a “veteran” lawyer provided what the court found to be a legal opinion of general application to a colleague. The colleague did not identify his own client or any of the litigants in the action to which the opinion applied. A few months later, parties (hereafter the “purchaser clients”) opposed in interest to the colleague’s client (and for whom the veteran lawyer had acted in the past) retained the veteran to represent them in a dispute about the purchase of a property contaminated with PCBs.

The information the veteran lawyer had provided over the phone related to mortgage foreclosure proceedings. The threatened foreclosure was still a live issue when the veteran lawyer was retained. With the assistance of a new lawyer, the advice-seeking lawyer and his client brought a motion seeking to prevent the veteran lawyer from continuing to represent the purchaser clients.

In considering the motion, the court applied the following two-part test for whether a lawyer should be disqualified due to a conflict of interest, articulated in MacDonald Estate v. Martin (1990 CanLII 32 (SCC))

1. Did the lawyer receive confidential information attributable to a solicitor-and-client relationship?
2. Is there a risk that the information will be used to the prejudice of the client?

With respect to the first question, the court noted that Rule 1 of the Rules of Professional Conduct makes it clear that a solicitor-client relationship can arise even where the client does not explicitly retain the lawyer. However, the court held that “[i]t is a client imparting confidential information about him/herself to a lawyer, and the lawyer’s receipt of such information, that brings a solicitor-client relationship into existence.” The advice-seeking lawyer did not reveal his client’s or the opposing parties’ identity, and the details of the advice provided by the veteran lawyer were included in the pleadings, and hence not kept private. For this reason, the first test question had to be answered in the negative. Since no confidential information was communicated, there was no possibility that confidential information could be used to the prejudice of the moving party. The court concluded that “the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.”

The court also reviewed, with references to the Rules of Professional Conduct, such issues as: at what point a solicitor-client relationship arises (hint: BEFORE the retainer is in place); what constitutes “legal advice” and the boundary “between general legal information and legal advice”; a lawyer’s duty of confidentiality (including in respect of non-clients); and a lawyer’s duty of care to non-clients. The decision provides a useful refresher about all of these topics.

Finally, in holding that the veteran lawyer’s provision of information did not put him in a conflict position, the court acknowledged the public policy implications of ruling otherwise: “A lawyer who receives a request for legal information from a more junior or less experienced colleague is entitled to assume, unless alerted either explicitly by the lawyer calling, or implicitly, by the confidential nature of the information imparted, that the consultation will not give rise to a conflict of interest or impose liability on the recipient of the request. To hold otherwise would have the effect of discouraging a sharing of general information that is beneficial to both the profession and the public.”

This decision should bring comfort to lawyers who take seriously their professional duty to mentor more junior members of the bar. However, it’s important to remember that decisions like this one are very fact-dependent, and that advice-giving situations may present in a variety of ways, so caution is important. To avoid putting yourself in a conflict of interest situation when giving advice, consider these tips that arise from the court’s reasons in this decision:

• Learning confidential information about a party immediately creates, at minimum, a duty of confidentiality. If asked to give advice, remind the asker not to reveal identifying details about his or her client, opponent, or the matter (where the facts are fairly unique).
• Keep your advice general. In 1623242 Ontario, the court held that the information given would have been available in a textbook on mortgage foreclosures. “Textbook” information is generally safe; tailored information is less so.
• Remember the difference between “giving advice” in the broader sense, and giving legal advice. In particular, avoid recommending one possible course of action over another.
• Speak with the lawyer, not his or her client. Not speaking with the client is not determinative with respect to avoiding a solicitor-client relationship, but at least the lawyer will not be able to testify that he or she mistook the conversation for legal representation.
• Make it clear to the advice-seeker that you are giving general information that may or may not be applicable to a particular set of facts, and that it is not meant to be relied on as legal advice.
• Make notes about the conversation, just in case the details of your involvement are ever questioned.