Amendment to Chapter 6, Professional Conduct Handbook

Lawyers can act for one client against another client in limited circumstances

Chapter 6 of the Professional Conduct Handbook, which sets out as a general principle the duty of a lawyer to give undivided loyalty to a client, has been amended to allow for representation of a client whose interests are adverse to those of another client in some situations.

For a lawyer to represent a client in acting against the interests of another client:

  • both clients must be informed of, and consent to, the representation,
  • the matters must be substantially unrelated and
  • the lawyer must not possess confidential information arising from the representation of one client that might reasonably affect the other representation: see Rule 6.3 .

A lawyer may sometimes infer client consent from the circumstances, such as where a client (typically a large institutional client) commonly permits lawyers who have acted for that client on one matter to act against the client on separate matters. This practice is customary for such institutional clients as ICBC and other large corporations, and for the Crown and organizations such as the Law Society.

Provided all criteria are followed, it is in the public interest for a lawyer to have scope to act for individual members of the public against such institutional clients since this gives individuals broader choice and flexibility in retaining counsel: see Rule 6.4.

Rule 7 of Chapter 6, which already allowed a lawyer to act for a client with interests adverse to those of a former client, has now been amended to track the language of Rule 6.3 in some respects. Such a representation requires either that the former client consent or that the new representation is substantially unrelated to the representation of the former client and that the lawyer does not possess confidential information from his or her representation of the former client that might reasonably affect the new representation.

The Benchers decided that requiring matters to be "wholly unrelated" was unnecessarily restrictive.

Chapter 6, as amended, is included in the enclosed Member's Manual amendment package and published on the Law Society website. The key provisions are set out below:

Acting against a current client

6.3 A lawyer must not represent a client for the purpose of acting against the interests of another client of the lawyer unless:

(a) both clients are informed that the lawyer proposes to act for both clients and both consent, and

(b) the matters are substantially unrelated and the lawyer does not possess confidential information arising from the representation of one client that might reasonably affect the other representation.

6.4 For the purposes of Rule 6.3, the consent of a client to the lawyer acting for another client adverse in interest may be inferred in the absence of contrary instructions if, in the reasonable belief of the lawyer, the client would consent in the matter in question because the client has

(a) previously consented to the lawyer, or another lawyer, acting for another client adverse in interest,

(b) commonly permitted a lawyer to act against the client while retaining the same lawyer in other matters to act on the client's behalf, or

(c) consented, generally, to the lawyer acting for another client adverse in interest.

Acting against a former client

  7. Subject to Rule 7.4, a lawyer must not represent a client for the purpose of acting against the interests of a former client of the lawyer unless:

(a) the former client is informed that the lawyer proposes to act for a client adverse in interest to the former client and the former client consents to the new representation, or

(b) the new representation is substantially unrelated to the lawyer's representation of the former client, and the lawyer does not possess confidential information arising from the representation of the former client that might reasonably affect the new representation.