Annotations to Chapter 3 – Relationship to Clients

Annotations to rule 3.1-1  Definitions

It is proper for lawyers to bid on and deliver services through the Legal Services Society proposed block contract system, provided they consider whether their resources permit them to provide services under the proposed contract system before agreeing to act. [PCH]
EC November 1997, item 6

A finding of incompetence requires a pattern of error. Accordingly, one instance of negligence did not amount to incompetence where the lawyer did not appear at a hearing because he had not received instructions from his client and believed his staff had adjourned the matter. [PCH]
DCD 00-01

A lawyer received postdated cheques from his client as the deposit in a real estate transaction. He held the cheques but did not disclose that they were postdated to the agent who assumed the cheques had been deposited. The lawyer acted incompetently in ceasing to act or in failing to seek instructions from his client to disclose the postdated cheques. As he intended no gain for himself, his conduct was not disgraceful or dishonourable. [PCH]
DCD 99-08

Annotations to rule 3.1-2  Competence

While a practice of meeting personally with a client in the preparation and execution of a will is highly desirable and may be required at law, a lawyer’s failure to do so in every circumstance does not necessarily amount to professional misconduct.  [PCH]
EC July 2010, item 3

A lawyer who made unfounded but serious allegations about the conduct of another lawyer in representing an accused person and incompetently performed his duties as counsel in the prosecution of four appeals in the Court of Appeal was found guilty of professional misconduct. [PCH]
DD 2008 No. 2 May
2008 LSBC 13

Case law

In upholding a Law Society decision to discipline a lawyer, the BC Court of Appeal concluded that if a lawyer cannot assemble admissible evidence to make a plausible case of incompetency of another lawyer, then he should not pursue the issue. [PCH]
Goldberg v. Law Society of British Columbia, 2009 BCCA 147
(see also Law Society decision )

Annotations to rule 3.2-1  Quality of service

It is proper for a lawyer to follow instructions from an insurer regarding the conduct of litigation, provided those instructions do not preclude the lawyer from undertaking work or incurring expense that the lawyer reasonably believes is necessary to defend the claim against the insured. [PCH]
EC April 1999, item 7

A lawyer who provides limited scope legal services should inform the client about the scope of services and the limits and risks associated with the limited services provided.  [PCH]
Recommendation 13 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

A lawyer’s failure to take the necessary steps to have an Order entered and her failure to advise her client concerning the risks of not entering the Order or the costs involved to settle terms of the Order were marked departures from the norm and amounted to professional misconduct.
2015 LSBC 05 

In finding the respondent guilty of professional misconduct a panel found that issues of quality of service can be divided into two general categories that are not mutually exclusive. One category can be described as the common sense category. An average person can determine this. This category would include such matters as: keeping the client informed, responding to correspondence, and filing court documents on time, to name a few. The second category is more sophisticated. What is the standard of a competent lawyer in handling the file? How do you gather the facts? What legal research do you do? How do you prepare for settlement, mediation or trial? This may require evidence from other lawyers practising in the area. This could be described as the professional category.
2014 LSBC 39

A lawyer who fails to properly review a file and breaches an undertaking given by another lawyer in the firm who previously had conduct of the file is practicing at a standard far below that which the public and profession are entitled to expect. His conduct constitutes the incompetent performance of duties undertaken in his capacity as a lawyer. [PCH]
DCD 01-24

Abandoning an appeal without client instructions and swearing a false affidavit saying those were the client's instructions constitutes professional misconduct. [PCH]
DCD 01-08

A lawyer who represented a client on a complaint to the BC Council of Human Rights failed to advise the client in a timely way that he had received from the Council a summary of their investigation, failed to seek instructions from the client on whether to file a response to the Council, and failed to seek an extension of time for the filing. The lawyer was found guilty of professional misconduct. [PCH]
DCD 94-8

The duty for all members to respond promptly is a duty that is owed not only to fellow members and to the Law Society, but also to lay persons with whom the member may be dealing with in the course of acting for a client. [PCH]
2005 LSBC 27

Annotations to rule 3.2-5  Threatening criminal or regulatory proceedings

While attempting to settle an error or omissions claim against a real estate licensee, a lawyer is not prohibited from seeking the agreement of a person not to initiate or proceed with a complaint to the Real Estate Council as part of the settlement. [PCH]
EC March 2000, item 9

It is proper for a lawyer to:

  • set out for an opposing party the legislation or rules that govern or may govern that party's conduct, and to take the position that, based on that legislation or rule, it is improper for that party to act in a certain way; or
  • indicate to an opposing party that the lawyer will seek a remedy on behalf of a client from a body that is mandated to give such a remedy.

It is improper for a lawyer to:

  • threaten to lay a charge or make a complaint to a regulatory authority in order to secure a civil advantage for the lawyers client; or
  • make a threat to invoke the jurisdiction of a body that is empowered only to impose a penalty. [PCH]

EC February 1998, item 11

A lawyer failed to report to the Law Society a judgment for costs obtained against him in his own matrimonial proceeding within the time period specified by Rule 5-10, and sought to impose a settlement condition on his spouse which required her to withdraw her complaint against him to the Law Society, thereby committing professional misconduct. [PCH]
DCD 99-27

It is professional misconduct for a lawyer to attempt to impose, as a condition of settling a fee dispute with former clients, a requirement that they withdraw complaints made to the Law Society. [PCH]
DCD 93-15

Annotations to rule 3.2-7  Dishonesty, fraud by client 

A lawyer both represented a client and invested his own money in an investment scheme that ultimately lost thousands of dollars of the lawyer’s own money and the money of other investors.  During the course of the representation the lawyer engaged in conduct intended to give shareholders the impression that their investment was secure and intended to generate earnings, although he knew that two government securities regulators were investigating the investment as a fraudulent scheme.  The lawyer was found guilty of professional misconduct for engaging in conduct that gave shareholders the impression that their investments were secure, for placing himself in a conflict of interest, for acting in a manner that had the potential of perpetrating a fraud and for not giving full and proper legal advice.  [PCH]
DD 2010: No. 2 Summer
2010 LSBC 03

A lawyer who represents a client conducting a fraudulent scheme is guilty of professional misconduct, even if he does not know the scheme is fraudulent, if he provides services to the client, receives money into his trust account, and recklessly makes representations to others about the scheme. [PCH]
DCD 03-08

A lawyer was guilty of professional misconduct when, prior to his retainer, he accepted a recording of a telephone conversation between his client's wife and her lawyer (without consent of either party), prepared a transcript of the recording, and used the transcript to prepare for an examination for discovery. [PCH]
2005 LSBC 23

A lawyer held $25,000 of his clients money in trust, subject to the terms of an irrevocable assignment. The client set up the irrevocable assignment to preserve funds against a possible demand from CCRA. The lawyer did not reflect on the appropriateness of the plan and his participation in the misleading scheme constituted professional misconduct. [PCH]
2004 LSBC 14 

It is conduct unbecoming a lawyer to be willfully blind to a client's intention to evade GST and income tax. [PCH]
2003 LSBC 44 

Annotations to rule 3.2-9  Clients with diminished capacity

The wording in the Power of Attorney Act and the Representation Agreement Act is not sufficiently clear that it would be appropriate to conclude that a lawyer may provide a donor or an adult, as the case may be, with confidential or privileged information without regard to the contents of the specific power of attorney or representation agreement itself. However, a lawyer may provide a representative with confidential or privileged information under S. 18 (2) of the Representation Agreement Act if the information is that contemplated in either 18 (1)(a) or 18 (1)(b) of the Act.
EC September 2013, item 6

Annotations to rule 3.3-1  Confidential information

It is proper for a law firm to employ a non-lawyer who works off-site and also works for another firm. However, in such circumstances the firm must exercise due diligence to ensure that both the firm and the contractor preserve client confidentiality, not only of the firm’s clients’ information, but information of the clients of other firms who may also be using the services of the contractor.
EC April 2015, item 7

The Ethics Committee provided an opinion on confidentiality and practice concerns to lawyers in the handling of requests for confidential or privileged information and documents from an attorney.
EC October 2014, item 8

Lawyers may refer work that involves the practice of law to private contractors. The real issue is whether the lawyer can properly supervise the work and ensure confidentiality. The lawyer must consider, among other things, the trustworthiness of the contractor, the nature and sensitivity of information that might be imparted to the contractor, how that information is to be protected, and the environment in which the contractor will be working. [PCH]
EC March 2005, item 4  

The missing Women's Task Force contacted a lawyer seeking information about someone who may have been a previous client. The lawyers duty of confidentiality required him to continue to keep the client's information confidential unless he is relieved of that responsibility by the client, the client's representative, or a court. [PCH]
EC July 2003, item 8

Where the court requires parties to litigation to exchange a list of witnesses prior to a scheduled pre-trial confidence, and counsel have received instructions not to disclose this information, the lawyer can apply to the court for an exemption from this requirement. If the exemption is refused, the lawyer must decline to accept the client's instructions and, if necessary, withdraw from the retainer. [PCH]
EC October 2002, item 10

It is not improper for a lawyer to provide confidential information about a client who is a patient under the Patients Property Act to the client's committee without the authority of a court order. However, it is not wrong for a lawyer to require the committee to obtain a court order compelling the lawyer to provide the information, particularly when the lawyer is uncertain whether there is a conflict of interest between the client and the committee, or for some other good reason. [PCH]
EC June 7 2001, item 8

A lawyer may permit an employee to do work out of the office, provided the lawyer is satisfied that doing so will not compromise client confidentiality. In determining whether a lawyer can fulfill obligations of confidentiality in these circumstances, the lawyer must have regard to, the trustworthiness of the employee, the nature and sensitivity of the information the employee will be taking away from the office, the environment in which the employee will be working, and the security that can be accorded to the confidential information contained in documents removed from the office by the employee. Lawyers must use due diligence to ensure that confidential information remains confidential. The due diligence required must take account of all the circumstances, but would usually include, at a minimum, giving the contractor written notice of the requirement to preserve confidentiality. It is not proper for such an employee to work on matters for clients adverse in interest who have retained different law firms. [PCH]
EC March 1, 2001, item 7

A lawyer may not disclose confidential client information in order to assist in proving his case in a contractual dispute with a former partner. [PCH]
EC July 2000, item 8

A lawyer may not disclose any portion of a deceased client's confidential information for the purpose of assisting the police in the investigation of his client's murder unless directed to do so by the client's personal representative or a court. [PCH]
EC June 2000, item 10

A lawyer is entitled to disclose a client's confidential information to the trustee in a bankruptcy if it is necessary to do that to collect the fee. [PCH]
EC December 1999, item 7 

In responding to a Request for Proposals inviting lawyers to bid on legal work for the Insurance Corporation of British Columbia, lawyers may not identify other clients without those clients' consent. [PCH]
EC June 1999, item 6

 A lawyer's obligations of confidentiality are not violated by transmission of client information by e-mail unless unusual circumstances require enhanced security measures. [PCH]
EC April 1998, item 7

It is improper for a lawyer who is the prospective vendor of a law practice to disclose confidential client information to a lawyer who is a prospective purchaser. [PCH]
EC December 1997, item 5

It is not improper for a lawyer to make a general assignment of practice receivables or to permit the assignee to exercise rights under the assignment, provided the rules governing client confidentiality are not compromised. [PCH]
EC June 1997, item 7

A lawyer may not share space with a non-lawyer unless the non-lawyer has no access to lawyer's client records and there is no possibility of overhearing conversations relating to the law firm's clients. [PCH]
EC December 1995 items 5 & 6

A lawyer may petition a client into bankruptcy in order to collect a fee, but may not make use of any confidential information gained from the representation of the client beyond what is necessary to collect the fee. [PCH]
EC April 1995, item 12 

A lawyer is subject to a duty of confidentiality to a prospective client who has disclosed confidential information to the lawyer notwithstanding that a retainer was never concluded. [PCH]
EC January 1994, item 4 

While there may be an implied waiver on the part of the client permitting disclosure of the client's name and address for the purpose of collection, where the client has failed to pay a bill, members may do only the minimum necessary to recover fees. As lawyers are bound by the ethical duty of confidentiality and the legal duty of solicitor/client privilege, lawyers are prohibited from reporting a client to a credit bureau. [PCH]
EC December 1992, item 4c 

It is not improper for a lawyer to provide confidential drafting assistance to clients.  Unless otherwise required by law or a court, the discretion to divulge the identity of the lawyer who provided drafting assistance should lie with the client. [PCH]
Recommendation 4 of Report of Unbundling of Legal Services Task Force p. 20; approved by Benchers April 2008

Case law 

Provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, insofar as they related to lawyers and law firms, infringe section 7 of the Charter of Rights and Freedoms because the liberty interests of both clients and lawyers were put in jeopardy where lawyers were required to collect and retain information about clients and potentially be required to produce it to government authorities. In doing so, the Court held that the independence of the bar is a principle of fundamental justice.
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, CanLII - 2015 SCC 7 (CanLII)

The Alberta Privacy Commissioner does not have statutory authority to compel production of records over which a public body has asserted solicitor-client privilege.
University of Calgary v. JR, 2015 ABCA 118 (leave to appeal to SCC granted October 29, 2015, No. 36460), CanLII - 2015 ABCA 118 (CanLII)

Ss. 231.2 and 231.7 of the Income Tax Act (the sections that authorize the Canada Revenue Agency to issue requirements for information, and to seek a compliance order if the documents are not produced pursuant to the requirement) are unconstitutional insofar as they relate to demands made upon lawyers for information from client files, since the process that allows seizure of the documents does not allow the client, the owner of the privilege, to know directly that the privilege is threatened. [PCH]
Chambre des Notaires du Quebec v. Canada (Procureur General), 2010 QCCC 4215 (Quebec Superior Court).
The decision was largely upheld by the Quebec Court of Appeal [see (2014 QCCA 552)]. As of December 2015 a decision from the Supreme Court of Canada is pending.
CanLII - 2014 QCCA 552 (CanLII)

Where the legislature wishes to include in a production power documents subject to solicitor-client privilege, it must do so expressly by using words to the effect that production follows “despite any privilege of the law of evidence” or phrases to like effect. Because of the absence of such direction section 16 of the Auditor General Act (which provides that, despite any other enactment, the Auditor General in the conduct of his duties must be given access to records, information and any explanations required from a person or organization for the Auditor General to exercise his powers and duties), does not permit the Auditor General to access records, information and explanations that are privileged.
British Columbia (Auditor General) v. British Columbia (Attorney General), 2013 BCSC 98, CanLII - 2013 BCSC 98 (CanLII)

Although a lawyer violated Chapter 5, Rule 4 of the Professional Conduct Handbook, such a violation does not necessarily create a foundation for a cause of action in negligence. [PCH]
Galambos v. Perez, 2009 SCC 48

When dealing with legislation that purports to compel the production of privileged information statutes must be strictly construed: (1) to abrogate privilege, statutory language must be clear unequivocal and unambiguous. (2) infringement of privilege cannot be by inference or implication. (3) general (“open-textured”) language granting power to compel the production of records is insufficiently specific to authorize a demand for production of records over which privilege is claimed.
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, CanLII - 2008 SCC 44 (CanLII)

Section 88 of the Legal Profession Act permits a lawyer who is under investigation by the Law Society to disclose confidential or privileged information to the Law Society without violating the lawyer’s duty of confidentiality or privilege. [PCH]
Skogstad v. Law Society of British Columbia, 2007 BCCA 310

A bill of account and its payment arises out of a solicitor-client relationship and of what transpires within it. It is therefore connected to the solicitor-client relationship and must be regarded, as a general rule, as one of its elements. The amount of fees and disbursements is information that is generally protected by solicitor-client privilege. [PCH]
Maranda v. Richer, 2003 SCC 67

The plaintiffs sought an order requiring a defendant law firm to produce documents for discovery and to produce a list of documents setting out the documents over which privilege was claimed. The firm made a blanket claim of privilege, stating that its clients had refused to waive privilege. The firm claimed privilege based on the confidentiality obligations it had over documents in its control. The court held that a blanket claim of privilege was not sustainable and ordered the firm to produce a list of documents setting out the relevant documents and the basis for which privilege was claimed. The Rules of Court have the full authority of law. The lawyer has a duty to properly list documents in a List of Documents and should advise the client which are privileged and which are not. Proceedings can be taken under Rule 29(1.2) where there is doubt as to whether a document is privileged or not. If the issue of privilege cannot be resolved, the lawyer may have to consider withdrawing from the retainer. [PCH]
Thermo Tech Technologies Inc. v. Braconnier 2003 BCSC 1019

Section 488.1 of the Criminal Code sets out a procedure for determining the claims of solicitor-client privilege in relation to documents seized from a law officer under a warrant. The procedure required that the material be seized at the time of search, required the solicitor to make an application within strict time limits for a determination whether the material was protected by privilege, and provided for the Crown to examine the material to assist in making the determination of privilege. The court found s. 488.1 unconstitutional. Because it permitted solicitor-client privilege to fall through the interstices of an inadequate procedure, the possible automatic loss of solicitor-client privilege through the normal operation of law is not reasonable. One of a lawyers most important duties and obligations is to protect the privilege and confidences of a client. That information must not be divulged to any person unless disclosure is expressly or impliedly authorized by the client, or is required by law or by a court. Where necessary, counsel might claim a blanket privilege at the outset of a search of the law office, particularly where a client cannot be found. [PCH]
Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61

The court reversed a decision of the Information and Privacy Commissioner ordering that the Legal Services Society reveal information that would indicate that certain clients were represented by Legal Aid. Financial arrangements between solicitor and client, including whether or not Legal Aid is involved, is privileged and must not be disclosed directly or indirectly. The objective of the legislation is to preserve a fundamental right that has always been essential to the administration of justice and it must be applied accordingly. [PCH]
Legal Services Society v. The Information and Privacy Commissioner of BC and Blaine Gaffney (25 September 1996), Vancouver, No. 960275, (BCSC)

An applicant for a development licence requested from the responsible Ministry information about meetings between the Ministry and a government solicitor and a copy of the legal opinion prepared by the solicitor. The court found that if a document meets the test for privilege (made between solicitor and client, intended to be confidential and entailing the seeking or giving of legal advice), then the document is privileged. There is no case for severance of privileged information and the release of other information in the document as provided under the legislation. [PCH]
Minister of Environment, Lands and Parks v. Information and Privacy Commissioner (Cypress Bowl Recreation Ltd.) (12 December 1995), Vancouver, No. A943843, (BCSC) 

Annotations to rule 3.3-2  Use of confidential information

The Ethics Committee provided an opinion on confidentiality and practice concerns to lawyers in the handling of requests for confidential or privileged information and documents from an attorney.
EC October 2014, item 8

Where a lawyer acting for a young person in a Young Offenders Act matter receives no confidential information relevant to a subsequent or contemporaneous CFCSA matter, it would not be improper for the lawyer to act for the Superintendent in the CFCSA matter. [PCH]
EC April 1996, item 11

A lawyer may not act simultaneously for a child on a Young Offenders Act matter and the Superintendent of Family and Child Services on the apprehension of the child under the Family and Child Services Act. [PCH]
EC September 1995, item 8 

Provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, insofar as they related to lawyers and law firms, infringe section 7 of the Charter of Rights and Freedoms because the liberty interests of both clients and lawyers were put in jeopardy where lawyers were required to collect and retain information about clients and potentially be required to produce it to government authorities. In doing so, the Court held that the independence of the bar is a principle of fundamental justice.
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, CanLII - 2015 SCC 7 (CanLII)

Ss. 231.2 and 231.7 of the Income Tax Act (the sections that authorize the Canada Revenue Agency to issue requirements for information, and to seek a compliance order if the documents are not produced pursuant to the requirement) are unconstitutional insofar as they relate to demands made upon lawyers for information from client files, since the process that allows seizure of the documents does not allow the client, the owner of the privilege, to know directly that the privilege is threatened. [PCH]
Chambre des Notaires du Quebec v. Canada (Procureur General), 2010 QCCC 4215 (Quebec Superior Court).
The decision was largely upheld by the Quebec Court of Appeal [see (2014 QCCA 552)]. As of December 2015 a decision from the Supreme Court of Canada is pending.
CanLII - 2014 QCCA 552 (CanLII)

Where the legislature wishes to include in a production power documents subject to solicitor-client privilege, it must do so expressly by using words to the effect that production follows “despite any privilege of the law of evidence” or phrases to like effect. Because of the absence of such direction section 16 of the Auditor General Act (which provides that, despite any other enactment, the Auditor General in the conduct of his duties must be given access to records, information and any explanations required from a person or organization for the Auditor General to exercise his powers and duties), does not permit the Auditor General to access records, information and explanations that are privileged.
British Columbia (Auditor General) v. British Columbia (Attorney General), 2013 BCSC 98, CanLII - 2013 BCSC 98 (CanLII)

Annotations to rule 3.3-2.1  Lawyers’ obligation to claim privilege when faced with requirement to surrender document

The Ethics Committee provided an opinion on confidentiality and practice concerns to lawyers in the handling of requests for confidential or privileged information and documents from an attorney.
EC October 2014, item 8

A lawyer who receives a demand from the Canada Revenue Agency (CRA) to produce documents under the Income Tax Act and is unable to obtain client instructions regarding whether to make a claim of privilege must claim the privilege, regardless of the lawyer's views about whether the documents are actually privileged. [PCH]
EC February 2009, item 4

Case law

Provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, insofar as they related to lawyers and law firms, infringe section 7 of the Charter of Rights and Freedoms because the liberty interests of both clients and lawyers were put in jeopardy where lawyers were required to collect and retain information about clients and potentially be required to produce it to government authorities. In doing so, the Court held that the independence of the bar is a principle of fundamental justice.
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, CanLII - 2015 SCC 7 (CanLII)

The Alberta Privacy Commissioner does not have statutory authority to compel production of records over which a public body has asserted solicitor-client privilege.
University of Calgary v. JR, 2015 ABCA 118 (leave to appeal to SCC granted October 29, 2015, No. 36460), CanLII - 2015 ABCA 118 (CanLII)

Ss. 231.2 and 231.7 of the Income Tax Act (the sections that authorize the Canada Revenue Agency to issue requirements for information, and to seek a compliance order if the documents are not produced pursuant to the requirement) are unconstitutional insofar as they relate to demands made upon lawyers for information from client files, since the process that allows seizure of the documents does not allow the client, the owner of the privilege, to know directly that the privilege is threatened. [PCH]
Chambre des Notaires du Quebec v. Canada (Procureur General), 2010 QCCC 4215 (Quebec Superior Court).
The decision was largely upheld by the Quebec Court of Appeal [see (2014 QCCA 552)]. As of December 2015 a decision from the Supreme Court of Canada is pending.
CanLII - 2014 QCCA 552 (CanLII)

Where the legislature wishes to include in a production power documents subject to solicitor-client privilege, it must do so expressly by using words to the effect that production follows “despite any privilege of the law of evidence” or phrases to like effect. Because of the absence of such direction section 16 of the Auditor General Act (which provides that, despite any other enactment, the Auditor General in the conduct of his duties must be given access to records, information and any explanations required from a person or organization for the Auditor General to exercise his powers and duties), does not permit the Auditor General to access records, information and explanations that are privileged.
British Columbia (Auditor General) v. British Columbia (Attorney General), 2013 BCSC 98, CanLII - 2013 BCSC 98 (CanLII)

When dealing with legislation that purports to compel the production of privileged information statutes must be strictly construed: (1) to abrogate privilege, statutory language must be clear unequivocal and unambiguous. (2) infringement of privilege cannot be by inference or implication. (3) general (“open-textured”) language granting power to compel the production of records is insufficiently specific to authorize a demand for production of records over which privilege is claimed.
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, CanLII - 2008 SCC 44 (CanLII)

The Privacy Commissioner for Canada has no power to compel the production of privileged documents for the purpose of determining whether they are privileged. An adjudication by the Commissioner, who is an administrative investigator not an adjudicator, would be an infringement of the privilege. [PCH]
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44

Lawyers’ accounting records are not privileged; therefore, a lawyer’s obligations set out in Chapter 5, Rule 14 of the Professional Conduct Handbook do not apply where the CRA demands that the lawyer provide accounting information from a client file. [PCH]
Canada (Minister of National Revenue) v. Cornfield, 2007 FC 436 

Annotations to rule 3.4-1  Duty to avoid conflicts of interest

As a general rule, a lawyer should not jointly advise or represent two or more police officers under investigation for, or witnesses to, a serious incident that arose in the course of their duties.
Benchers' Bulletin, Fall 2014, item 2

It is not inappropriate for counsel for a claimant for damages for personal injury to also act for the Ministry of Justice in its claim under the Health Care Costs Recovery Act arising out of the same facts. Where the lawyer agrees to act on both claims, rules 3.4-5 to 3.4-9 (the joint retainer rules) are applicable.
EC December 2013, item 4

It is not improper for a lawyer to continue to act in a matter where the lawyer is prevented by an implied undertaking from disclosing relevant confidential information to a client, as long as the lawyer complies with the undertaking. [PCH]
EC February 2009, item 3

A recommendation of independent legal advice to both parties to a transaction is insufficient to permit a lawyer to act on both sides of the transaction. [PCH]
EC December 2008, item 3

A lawyer represented a group of plaintiffs in class action proceedings. Settlement discussions were underway, but he anticipated that he could encounter a situation where all aspects of the proceeding were settled except counsel fees. He was concerned that would place him in a conflict of interest position that would require his withdrawal from the matter and queried whether the role of the Case Management judge may alleviate his concerns about potential conflict. The Committee observed that s. 38 of the Class Proceedings Act gives the court wide authority to determine a lawyers fees and disbursements in class proceedings and an agreement respecting fees is not enforceable unless approved by the court. The lawyer would not be in a conflict if all matters save fees were settled. [PCH]
EC May 2006, item 3

ICBC requires defences counsel to enter into a Strategic Alliance Agreement (SAA) with it, wherein counsel agree to decline to act against ICBC in some kinds of actions, although it does not prevent them from acting for plaintiffs against ICBC in other matters. The Trial Lawyers Association queried whether the agreement placed lawyers in a conflict or created ethical dilemmas for them. The Committee found:

  • A lawyer who has signed the SAA must not advise clients or act for clients where there is a reasonable basis for believing the evidence supports claims of this nature. Lawyers who are prevented from bringing claims by reason of their agreement with ICBC may properly refer them to other lawyers. A lawyer must cease acting for a client when he or she discovers that the client has a reasonable basis for commencing a claim that the lawyer is prevented from bringing.
  • A lawyer must not act for a client where there is a reasonable basis for a property damage claim involving ICBC, particularly where there is a potential claim for bad faith and/or punitive, aggravated, or exemplary damages against ICBC.
  • Where a lawyer acting for an ICBC-insured defendant believes that the plaintiffs claim may exceed the defendants policy limit, resulting in personal exposure, the lawyer must advise the client to seek independent legal advice. The terms of the SAA do not prevent a lawyer from doing this; in fact, the lawyer must act in the best interests of ICBC and its insureds.
  • A lawyer subject to the SAA must not act if the circumstances support a claim for punitive, aggravated, or exemplary damages against ICBC.
  • It is proper for a lawyer in good faith to recommend that a person obtain independent legal advice.

If ICBC refused to permit SAA lawyers to disclose the fact that they represent ICBC and cannot act in some kinds of matters because of their obligations to ICBC, the Committee would be prepared to consider the issue further. [PCH]
EC April 2006, item 5

A lawyer who learns sensitive information about a client's case (e.g., the health problems of the other litigant) during a social interaction does not owe a duty to the person he learns it from. Having received the sensitive information, however, the lawyer is obliged to pass it on to his firm and to the firm's clients. To do otherwise would be inconsistent with the firms loyalty to the clients. The other persons lawyer must be advised about the social interaction. Failure to do so would be sharp practice. [PCH]
EC June 2005, item 8

A lawyer can never act jointly for two parties to a transaction where the interests of the parties are actually adverse. However, in limited circumstances, two opposite parties to a transaction could be described as not adverse in interest such that a lawyer could act for them jointly. Those circumstances might include the following:

  • where all issues with respect to the transaction have been agreed upon by the parties and the lawyer is asked only to prepare standard form documents to give effect to the transaction;
  • where both parties have requested that the lawyer prepare documentation to evidence an agreement negotiated by the parties, on the understanding that the parties own separate lawyers will use that documentation to conduct further negotiations, if necessary, and conclude an agreement; or
  • where lawyers for both parties retain a single lawyer to prepare documentation to give effect to an agreement, the separate lawyers for the parties have negotiated and are free to negotiate further if they choose.

Preparation of documents to give effect to an agreement already reached by the parties is not proper. The preparation of documents, other than standard form documents, will require a lawyer to emphasize certain aspects of the bargain that favour one party at the expense of the other. [PCH]
EC July 2002, item 5

A lawyer may not act for two clients in separate matrimonial proceedings where the clients live together in a common law relationship. Because they reside in a common household, there is a danger that the representation he provides for one will affect the claim of the other. For example, there may be fewer resources in the common household to satisfy one party's claims. Furthermore, he may have obtained confidential information from both clients that may affect the representation of the other. [PCH]
EC March 1997, item 9

It is improper for a lawyer to act for both the purchaser of a business and the bank that is advancing funds for the purchase of the business. [PCH]
EC February 1997, item 9

A lawyer who is elected to a city council is prohibited from representing a client involved in litigation with the city. [PCH]
EC December 1996, item 12

A mother and her children retained a lawyer to commence an action against the woman's husband and children's father in a motor vehicle accident case, alleging that he was driving negligently. The father alleged that the mother was contributorily negligent in failing to ensure the children's seatbelts were fastened. There was also a potential policy limits problem. The lawyer was in a conflict of interest, given the allegation that the mother might have a duty to ensure the children were wearing seatbelts. He should cease representing the mother and children. He had likely received confidential information from the mother, which he would be obliged to use to the benefit of the children if he continued to act for them. And, he would be unable to continue to represent the mother without disclosing confidential information received by him from the children. One lawyer could represent the children with great caution and in compliance with Chapter 6 of the Professional Conduct Handbook. [PCH]
EC February 1996, item 9

Husband and wife lawyers are not prohibited from acting for clients whose interests conflict, provided full disclosure of the circumstances of the representation is made to the parties in accordance with Canon 3(2) of the Professional Conduct Handbook. (See also Chapter 7, Rule 2 of the Professional Conduct Handbook which may prevent husband and wife acting for adverse parties in some circumstances.) [PCH]
EC March 1995, item 12

Based on a favourable tax ruling from Revenue Canada (now Canada Revenue Agency), a lawyer concluded that past advice he had given to a current client, M Corp, concerning tax shelters in the film industry might no longer be valid. However, he did not advise M Corp of his revised opinion and, instead, pursued business opportunities arising from that revised opinion for a new client in which he had a financial interest. His failure to advise M Corp concerning the ruling and his revised opinion resulting from the ruling constituted professional misconduct. (See also Strother v. 3464920 Canada Inc., 2007 SCC 24)
2015 LSBC 07

A lawyer acted for the purchaser and mortgagee in a real estate transaction. The purchaser flipped the property and entered into an agreement with another purchaser, whom the lawyer also represented. The lawyer breached his fiduciary duty to the second purchaser by failing to disclose each party's interest in the transaction to every other party and obtaining their consent, and in failing to disclose the profit being made in the second conveyance. [PCH]
2004 LSBC 40

A lawyer who represented both a company and the majority shareholders in an action initiated by a minority shareholder who was claiming relief from oppression under the Company Act was found to be acting in a conflict of interest. [PCH]
DCD 93- 5

Case law

A single shareholder brought an oppression action against the company. Because there was a single director of the company the court found that there was a common interest between the company as a whole and all of its directors in connection with the oppression action; therefore no conflict arose by reason of the lawyer acting for both the company and its director.
Maedou Consulting Inc. v. 887455 B.C. Ltd. 2015 BCSC 2009, CanLII - 2015 BCSC 2009 (CanLII)

Two firms, Statesman and Matco, formed a joint venture to develop condominiums. Each was separately represented. The law firm of Bennett Jones acted for Matco, an important and long standing client. At some point, disputes with contractors of the project arose, and the joint venture asked Bennett Jones to act to defend the claims. Mindful of its relationship with Matco, Bennet Jones had Statesman acknowledge that its limited retainer for the joint venture in defending the claims would not prevent it from continuing to act for Matco “in the unlikely event of disagreement between Matco and Statesman in the future.” When such a disagreement did arise, counsel for Statesman demanded that Bennett Jones remove itself as counsel for Matco. In overturning a contrary decision by the lower court, the Alberta Court of Appeal held there was no concern about the misuse of confidential information by Bennet Jones and therefore there was no basis for refusing to allow Bennett Jones and Matco to rely on the consent provided by Statesman.
Statesman Master Builders Inc. v. Bennett Jones LLP, 2015 ABCA 142, CanLII - 2015 ABCA 142 (CanLII)

A lawyer (or law firm) may not concurrently represent clients adverse in interest without first obtaining the clients’ consent, whether or not the matters are related. The rule applies to concurrent representation in both related and unrelated matters and cannot be rebutted or otherwise attenuated. It applies only where the immediate legal interests (as opposed to commercial or strategic interests) are directly adverse. It cannot be raised tactically and in exceptional cases does not apply in circumstances where it is unreasonable for a client to expect that a law firm will not act against it in unrelated matters. [BC Code]
Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39

The court outlined 17 principles applicable to the disqualification of a lawyer, particularly in a criminal law context, as a result of a conflict of interest.
R. v. Cocks, 2012 BCSC 1336, CanLII - 2012 BCSC 1336 (CanLII)

A lawyer who received funds that belonged to the husband of his client paid the funds to his client, rather than the husband’s solicitor as the court ordered. The court found the lawyer knew or should have known the husband did not wish to share the funds with his wife and owed a duty of care to him not to do so without his consent. The court awarded damages to the husband and in the course of doing so identified some elementary principles that all lawyers must know, including: a lawyer handling another’s money may not give the money to his or her client without the owner’s consent; and if a lawyer is responsible for a non-client’s money that comes into the lawyer’s hands, the lawyer must not prefer the interests of one party over another if a conflict of interest arises. [PCH]
Dhillon v. Jaffer, 2012 BCCA 156

A lawyer acted for the company and two of its shareholders in litigation brought by another of the company’s shareholders. In an application to remove the lawyer on the basis of conflict the court dismissed the application, finding on the facts that no confidential information was imparted to the lawyer from the company that would be used against the applicant or the company were the lawyer to continue to represent the personal defendants. Moreover, timing and delay weigh heavily against the relief sought. [PCH]
Kwong v. Kwong, 2012 BCSC 1829

A court enjoined a lawyer from acting for both the petitioning creditor and the trustee in bankruptcy, although the lawyer was permitted to continue to act for the creditor. The court found that where a lawyer seeks to act for both the petitioning creditor and the trustee in bankruptcy, the court must examine the circumstances of each case to determine whether such representation is proper. [PCH]
0810363 BC Ltd. (Re), 2012 BCSC 671

Where it was established that there was a risk that a lawyer acting for a husband would be in breach of an implied undertaking to safeguard relevant information acquired during the time the lawyer acted for the wife’s previous husband, the lawyer was ordered to cease acting for the husband. [PCH]
Svorinic v. Svorinic, 2012 BCSC 826

An applicant who argues for “near client” status in an application to disqualify a lawyer must provide some minimal description of why previously provided confidential information is related to the present matter. The onus is on the applicant to establish that the possibility of potentially relevant information having been acquired by the lawyer from the previous retainer is “realistic” and not just “theoretical” or “speculation.” [PCH]
CLS Catering Services Ltd. v. Mahil, 2011 BCCA 321

A minority shareholder obtained leave to start a derivative action in the name of the company against the company’s majority shareholder, but was also engaged in litigation against the company on a number of other matters, including his alleged wrongful dismissal from the company. The court found that the minority shareholder’s counsel in all the matters was involved in a potential conflict by reason of the implied undertaking not to use documents obtained in one action in another action. However, the Court held there was no basis to remove the lawyer “unless and until a specific, otherwise insoluble issue arises in regard to particular documents.” [PCH]
Enerex Botanicals Lt. v. Humet-PBC North America Inc,. 2010 BCSC 1719

Where a client has a potential claim for negligence against a lawyer, that lawyer and the lawyer’s firm may not continue to act on the matter giving rise to the claim unless the client instructs the lawyer to proceed after receiving independent legal advice at the firm’s expense. [PCH]
Campbell V. Ragona, 2010 BCSC 1339

A lawyer who assisted another lawyer and that lawyer’s clients in a litigation was a “near client” as a result of rendering that assistance and in an action against him by the same clients represented by the same lawyer the lawyer who brought the action was removed by the Court. [PCH]
Roeder v. Chamberlain, 2010 BCSC 920

Where a lawyer learned about the financial situation of an opposing litigant and about allegations of bad character made about her when she was in a relationship with his former client, the lawyer was prevented from acting against her in a new matter where those facts were relevant. [PCH]
Wilson v. Brown, 2010 BCSC 249

A solicitor cannot represent a party contrary in interest to a long term client without ensuring that the long term client is separately represented. [PCH]
West Fork Ranch v. Marcotte, 2009 BCCA 542

A lawyer was permitted by the Court to represent the eldest child on a charge of sexual assault and the child’s parents in a matter related to the same event in which the Director of Child, Family and Community Service was seeking an order permitting him to enter the family home to interview the eldest child’s siblings. The Director raised the issue of conflict for the first time on appeal. While the Court recognized there was a theoretical possibility of a conflict between the interests of the oldest child and his younger siblings, or (more remotely) between the parents and the children, it was hard in the present application to discern the possibility of the “real mischief” identified in MacDonald Estate v. Martin that would require the Court to deny the parents the ability to retain their lawyer of choice. [PCH]
British Columbia (Child, Family and Community Service) v. M.O., 2009 BCSC 521

Where plaintiffs were seeking to prove a will in solemn form the defendants sought to remove the respondent law firm acting for the plaintiffs on the grounds that the firm acted for the defendant M on two litigation matters in Alberta, and had been consulted by M with respect to estate and succession matters generally. The Court concluded that the fact the law firm acted for M and his companies on other matters would not permit a member of the public to accept that the firm’s duty to M could permit it to act against him, even in unrelated litigation. Due to the existing relationship on the Alberta litigation matters, the firm would have been provided with confidential information in the expectation by M that it would be kept confidential. The firm may have gained insight into the temperament, personal circumstances and financial affairs of M that might affect settlement issues and cross-examination of M should he become a witness. Moreover, the erection of ethical walls within the firm to ensure that anything learned about from the Alberta litigation would not be shared on the estate litigation did not solve the problem as the Court concluded that the wall was not set up soon enough or successfully. [PCH]
Cewe Estate v. Mide-Wilson, 2009 BCSC 975

A lawyer may not act for a client in bankruptcy and the client’s parents-in-law who are creditors in the bankruptcy where another creditor is the client’s former wife, against whom the lawyer acted in divorce proceedings. The wife was awarded costs in the divorce proceedings and she claimed those costs as a debt in the bankruptcy proceedings. The Court found that it cannot be said that the bankrupt’s interest and that of his parents-in-law whom the lawyer also represented were the same, especially where the reality of that common interest could be viewed as an attempt to defeat the former wife’s recovery of the costs awarded her by the court. [PCH]
Bankruptcy of Calogheros, 2008 BCSC 1578

A lawyer was a personal defendant in a related action to an action she was involved in as counsel, brought by the same plaintiff. The court determined that although there was a possibility that confidential information obtained in one action could be relevant and could risk being disclosed in the other, a reasonable member of the public would conclude no unauthorized disclosure of confidential information by the lawyer would occur. The plaintiff was protected against the unauthorized use of confidential information by the court’s role in ruling on questions of the producibility of documents and relevance of evidence, together with the lawyer’s duty as an officer of the court to prevent the unauthorized use of confidential information coming into her possession. [PCH]
McDaniel v. Provident Life and Accident Insurance Company
, 2008 BCSC 50

Where a lawyer concludes that past advice given to a current client concerning the tax implications of certain business ventures in which the client had been engaged may no longer be valid, the lawyer has a duty to advise the client of that view.  This duty arises even though the matters on which the lawyer’s firm now acts for the client are unrelated to the matters on which that advice was given. [PCH]
Strother v. 3464920 Canada Inc.,
2007 SCC 24

The plaintiff in an oppression action sought to remove the firm from acting for the company. The firm did not act for any shareholders, but had been retained as corporate counsel and had investigated matters in dispute. The firm had asked for the plaintiff’s resignation as director, and subsequently filed defences in a wrongful dismissal action and an oppression action brought by the plaintiff. The majority shareholders had their own counsel at all times. Because the plaintiff had claims against the company, it was unavoidable that the firm would take an adversarial position against him. However, disqualifying the firm would not solve the problem, and it was permitted to continue acting for the company. [PCH]
Ewanchyna v. Canadian Community Reading Plan Inc., 2007 BCSC 1210

A firm was precluded from acting in a number of proceedings involving a company (RID) and its shareholders. The firm had been acting for RID on litigation brought by it against a shareholder (RBL) and its principal (M). The firm had come into confidential information of RID in its relationship with RBL and M. The court concluded that this information would now be available to the majority shareholders in the oppression action if the firm was permitted to continue representing the company and its majority shareholders. It is reasonable for a shareholder to expect that a company, as a separate legal entity, will not take sides in a shareholder oppression action. It is equally reasonable for a shareholder to expect that corporate counsel will not put itself in a position where it finds itself obliged to share with the majority shareholders what it learned from the company about a party’s history as a shareholder in the company. Because the firm’s involvement had extended over a considerable period of time, the court could not conclude that it had not received confidential information that would be relevant to the dispute. [PCH]
RBL Management Inc. v. Royal Island Development Ltd., 2007 BCSC 674

In an ongoing battle for control of a society the dissident directors sought to remove counsel who acted for the incumbent directors and the society. The dissidents argued that it was improper for the incumbents to act and instruct counsel for the society until the court determined who was properly authorized to give instructions on behalf of the society. The court found no conflict between the incumbent directors and the society; their interests were parallel as each was striving to maintain the integrity of the society’s processes. It was only possible that the interests of the society and the incumbent directors would diverge if the court confirmed the validity of a meeting at which the dissidents appointed their own Board of Directors. Until the court declared that the meeting was valid, the incumbents were entitled to manage the society and instruct counsel. While the court has inherent jurisdiction to remove counsel, such power should be used sparingly, particularly when it contrary to the wishes of the client. [PCH]
Philippine Community Centre Society v. DeGuzman, 2006 BCSC 1294

The plaintiff faced charges arising from a fire on premises owned in part by her. She retained R. R's nominal partner acted for another client, who was also charged with respect to the fire. F said he set the fire at the plaintiff's request and she was convicted. The plaintiff brought an action against R, alleging he acted in a conflict of interest by allowing his partner to represent F, whose interests were adverse to hers. Her action for recovery of her fees was not successful. While R and his nominal partner shared an office and a receptionist, they did not share files. Although the two clients interests were clearly adverse, the partner did not prepare F for the plaintiff's trial. R also told the plaintiff that he was willing to ask the other lawyer to withdraw. The court found there was nothing to indicate that R could not represent C effectively. Not all conflicts call the integrity of the judicial system into question. Sometimes the conflict will involve only private interests, as in this case. [PCH]
Cote v. Rancourt, 2004 SCC 58

In an action seeking removal of, and return of funds by the president of a society, the court allowed the same lawyer to act for the president and director of the society in proceedings brought by other (but not all) directors. The interests of the two clients the president and the society were not adverse. The Board of the society, and therefore the society itself, had concluded that the actions of the president were authorized. The positions of the society and its president were not adverse and while there was a potential for conflict, there was as yet no actual conflict of interest. The joint retainer therefore did not breach the duty of loyalty. Furthermore, the petitioners had not identified prejudice arising from the current representation, and it was late in the proceedings. Granting the application to remove the lawyer would undermine the fairness of the litigation process. [PCH]
de Guzman v. de la Cruz, 2004 BCSC 36

The plaintiff commenced a lien action against the defendant, who retained a law firm to represent it. The firm was already on retainer to the plaintiff for ongoing corporate, commercial, and other solicitor's work. The plaintiff did not consent to the firm acting for the defendant. The firm terminated its retainer with the plaintiff. The plaintiff sought an order restraining the firm from acting for the defendant. Although the court found that the two retainers were unrelated, it granted an order removing the firm. The bright line rule applied. A lawyer or law firm must not put his or their own business interests ahead of the client's. [PCH]
Toddglen Construction Limited v. Concord Adex Developments Corp. [2004] O.J. No. 1788

The facts arose from a dispute within company S, which resulted in an action by the J group seeking relief against C, who was alleged to have been improperly representing herself as the sole director of the company and acting without regard for the shareholders. The first proceeding, brought by C, resulted in a court ordered AGM where directors from J group were elected as directors of S. C was not elected. Shortly thereafter, the petitioners in the second proceeding sought an order seeking return of shares, corporate records and documents from C, amongst others. In this application, the court queried why the petitioners sought the return of shares and documents as opposed to S itself. The lawyer amended the notice of motion, naming S as the applicant, and filing a notice of change of solicitor naming himself as solicitor for S. The result was that the lawyer was now counsel for the petitioners in the second proceeding, as well as counsel for one of the respondents in the same proceeding. The court found that the lawyer was not in a conflict of interest in the first proceeding, because S was not a party to the action, and because he represented only the interests of parties who claimed to be entitled to cause a meeting of the company to be convened. With respect to the second proceeding, the lawyer had placed himself in a conflict by representing S, as well as the petitioners in their personal capacity. The company required advice that was independent and objective and must be detached from the interests of the petitioners themselves. The advice could not be provided by a solicitor or counsel retained to act for both sides. The lawyer was removed as counsel for S and the J group. [PCH]
Coutu v. Jorgensen, 2003 BCSC 1608

Where the joint retainer for a company and its shareholders was brief and no actual prejudice arose, one could infer that a lawyer had not received confidential information to the prejudice of the complaining shareholders and therefore be permitted to continue to act. [PCH]
Jorgenson v. San Jose Mines Ltd., 2003 BCSC 1608

An expert report prepared by a lawyer as witness on behalf of the plaintiff in litigation was not admissible because the lawyer was in a conflict of interest, having been a partner in a firm that had provided advice to the defendant on a matter sufficiently related to the litigation in question. The report was prepared by a former partner of the lawyer who had previously advised the defendant at a time when the firm in which they were partners had been dissolved, but still appeared in the public eye, to be practicing together. The duty of confidentiality owed to clients includes a much broader principle of avoidance of conflicts of interest in which confidential information may or may not play a role. [PCH]
Schober v. Walker, 2003 BCSC 783

The accused paralegal (N) faced a 92-count indictment. One charged that he had fabricated court documents in a divorce action; another that concerned an alleged scheme to defraud a trust company. The accused's business partner was also implicated in the trust company matter. N had an ongoing relationship with a law firm (V). One lawyer at V acted for the business partner on her divorce. He knew that she would likely be charged in the trust company matter, and intended to run an aggressive defence against the accused for the benefit of the partner. While his firm had an ongoing solicitor-client relationship with the accused, the lawyer met with the accused for the sole purpose of collecting information from him that would be useful in the defence of the business partner. The two clients of the firm were therefore adverse in interest to each other. The court found that a lawyer owes a duty of loyalty to a current client of the lawyer (or his firm), which includes a broader principle of avoidance of conflicts of interest in which confidential information may or may not play a role. The court drew a bright line, saying that there is a 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 mandates are unrelated unless both clients consent after receiving full disclosure (and preferable independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. Consent, in exceptional cases, could be inferred. For example, professional litigants such as banks or governments will understand that lawyers may act for and against them in sufficiently unrelated matters where there is no danger of confidential information being abused. In this case, despite finding a breach of duty of loyalty, the court held that no stay of proceedings was justified. [PCH]
R. v. Neil, 2002 SCC 70

The city applied to restrain the plaintiff's counsel from acting on the grounds that the firm initially represented the city on other matters that were sufficiently related to establish that a conflict existed. For a significant period of time, the law firm was acting for both parties. The court concluded that even if the two matters were sufficiently related, that fact alone should not lead the court to infer that confidential information was imparted. A reasonably informed person would be satisfied objectively that no confidential information came into the firm's hands that would or could be used by the firm to the prejudice of the city. The firm could continue to act for the plaintiff. [PCH]
Ribeiro v. Vancouver (City) 2002 BCCA 678; leave to appeal refused September 11, 2003.

The plaintiffs had lived in premises that were destroyed by fire and alleged the defendant set the fire. The defendant counterclaimed that one of the plaintiffs set the fire. The defendant had previously faced criminal charges arising out of the fire. A judicial stay of proceedings had been entered on one count, and the defendant was acquitted on the other three counts. The defendant sought to remove the plaintiffs' solicitor on the basis that there was a conflict of interest between the parties for whom the solicitor acted. The court dismissed the application, concluding that it should not intervene concerning the plaintiffs choice of counsel. There was a potential conflict, but with informed consent, counsel could act for more than one party in circumstances that might give rise to divided loyalties. The lawyer had said he complied with Law Society provisions, and he must be taken at his word. Although a theoretical conflict might exist, it was a conflict that arose on the evidence of the defendant, evidence that might not be accepted by the court. [PCH]
Davies v. Pedersen 2002 BCSC 1245

The court will not infer that lawyers who are married to each other will necessarily share professional confidences. However, there may be circumstances where a spousal relationship will prevent spouses from acting against each other for competing clients. Two examples are where they cannot give undivided loyalty to the clients, or where one or both spouses have a direct or indirect interest in a matter. [PCH]
Grabber Industrial Products Central Ltd. v. Stewart, 2000 BCCA 206

The court declined an alleged bankrupt's application to have a law firm representing the court appointed interim receiver removed on the basis that one of the lawyers acting for the petitioning creditors was married to one of the lawyers representing the interim receiver. The issue raised by the lawyers marital relationship could be addressed by an undertaking or affidavit deposing that no confidential information would be exchanged. [PCH]
Re Down[1999] Civ. L.D. 537 (BCSC); [1999] BCJ No.1809

Litigation arising out of a proxy battle between two groups of shareholders for control of a company was commenced. At a social occasion before litigation was commenced, one responding shareholder spoke about a matter not at issue in the dispute to a lawyer from the firm representing the petitioning shareholders. No disqualifying conflict of interest was found. [PCH]
Sinclair v. Sutton Resources Ltd.
(1996) 21 B.C.L.R. (3d) 135 (S.C.)

A lawyer was prohibited from acting for the both majority shareholders and the company in a proceeding where a minority shareholder petitioned for relief under s. 224 of the Company Act. [PCH]
Gaylor v. Galiano Trading Co. (30 August 1996), Vancouver, No. A962077, (B.C.S.C.); supplementary reasons September 18, 1996.

ICBC appointed one lawyer to defend four separate motor vehicle actions against one plaintiff. The court ordered the four actions to be heard together. The trial judge refused to permit the trials to proceed on the basis that counsel for the defendants was in a conflict of interest. The Court of Appeal allowed the appeal as there was no apparent conflict that justified the interference of the court. [PCH]
Mara (Guardian ad litem of) v. Blake (25 April 1996), Vancouver, No. CA019711, (B.C.C.A.)

Lawyers acting for the plaintiff corporation and its majority shareholders were not removed in a dispute between persons who were all shareholders in the company in which their status as shareholders was incidental to the personal dispute. The risk of possible future conflict was not sufficiently great to enjoin the law firm from acting and might unfairly prejudice the company and shareholders seeking urgent injunctive relief. [PCH]
Will Millar Associates Co. v. Millar
(11 October 1995), Vancouver, No. 955407, (B.C.S.C.)

A lawyer acting for an injured plaintiff in a motor vehicle accident where the defendant owner was also a passenger in the vehicle agreed to obtain information relating to the owner's claim and, in the course of doing so, obtained confidential information relevant to the action. The lawyer was removed as solicitor of record for the plaintiff and ordered to cease acting for any of the parties. [PCH]
Clouthier v. Milljour
(11 August 1995), Nanaimo, No. 7113, (B.C.S.C.)

A lawyer was retained by the husband in a matrimonial dispute. Shortly thereafter, the lawyer had a telephone conversation with the wife who was seeking legal advice on her matrimonial problem. The wife was not aware that her husband had consulted the lawyer, and the lawyer did not realize during the call that the wife was married to her client. The wife was successful in her application to disqualify the lawyer from acting for her husband. She had divulged confidential information to the lawyer, even though she had not yet formally retained the lawyer. [PCH]
Bell v. Nash
(1993), 83 B.C.L.R. (2d) 155 (C.A.)

Annotations to rule 3.4-2  Consent

Two firms, Statesman and Matco, formed a joint venture to develop condominiums. Each was separately represented. The law firm of Bennett Jones acted for Matco, an important and long standing client. At some point, disputes with contractors of the project arose, and the joint venture asked Bennett Jones to act to defend the claims. Mindful of its relationship with Matco, Bennet Jones had Statesman acknowledge that its limited retainer for the joint venture in defending the claims would not prevent it from continuing to act for Matco “in the unlikely event of disagreement between Matco and Statesman in the future.” When such a disagreement did arise, counsel for Statesman demanded that Bennett Jones remove itself as counsel for Matco. In overturning a contrary decision by the lower court, the Alberta Court of Appeal held there was no concern about the misuse of confidential information by Bennet Jones and therefore there was no basis for refusing to allow Bennett Jones and Matco to rely on the consent provided by Statesman.
Statesman Master Builders Inc. v. Bennett Jones LLP, 2015 ABCA 142, CanLII - 2015 ABCA 142 (CanLII) 

Annotations to rule 3.4-5 to 3.4-9  Joint retainers

It is not inappropriate for counsel for a claimant for damages for personal injury to also act for the Ministry of Justice in its claim under the Health Care Costs Recovery Act arising out of the same facts. Where the lawyer agrees to act on both claims, rules 3.4-5 to 3.4-9 (the joint retainer rules) are applicable.
EC December 2013, item 4

Where a lawyer acting for ICBC and an insured as joint clients knows that the insured opposes the admission of liability or the terms of a proposed settlement, the lawyer must give the insured reasonable notice of ICBC's intention to admit liability or settle the claim. [PCH]
EC April 2009, item 4a

The conflict provisions of the Professional Conduct Handbook do not require a lawyer acting jointly for ICBC and the insured to withdraw where the insured objects to ICBC instructing the lawyer, as long as the instructions from ICBC are in the areas permitted by Regulation 74.1 of the Insurance (Vehicle) Act. [PCH]
EC April 2009, item 4b

While an insured may not wish to be represented by a lawyer appointed by ICBC and may either retain his or her own counsel or elect to self represent, that does not affect ICBC's right to control the defence in the ways permitted by Regulation 74.1. [PCH]
EC April 2009, item 4c  

Where a lawyer is acting for ICBC and an insured as joint clients the insured is entitled to receive the same information from counsel that ICBC receives. [PCH]
EC April 2009, item 4d

A lawyer who acts jointly for the insurer and an insured may properly decline to provide information to an insured with the insured's consent. [PCH]
EC April 2009, item 4e  

A lawyer engaged by an insurer to represent an insured to defend a third-party liability claim may represent the insured alone or, with appropriate disclosure in accordance with Chapter 6 of the Professional Conduct Handbook, may represent both the insurer and the insured jointly with respect to all or some aspects of the matter. Where the representation is structured as a joint retainer, the lawyer has duties to both the insured and the insurer, and must take care to identify and avoid conflicts of interest between the two clients. So long as the insured is a client, the rules of professional conduct — and not the insurance contract — govern the lawyer's obligations to the insured. [PCH]
EC reported in October 2008 Benchers Bulletin

Where a lawyer proposes to represent two groups of plaintiffs in actions arising out of an investment scheme, it is improper for the lawyer to represent the groups jointly where the first group was not suing a defendant sued by the second group. [PCH]
EC April 2008, item 4

Chapter 6, Rule 4 of the Professional Conduct Handbook must defer to legislation that prevents a lawyer from complying with it. However, where s. 148 of the Securities Act prevents a lawyer from complying with the requirement to share relevant information with joint clients, it does not necessarily follow that the joint retainer cannot proceed. It is proper for a lawyer to act for a client jointly where s. 148 of the Act prevents the lawyer from disclosing relevant information given by one joint client to another where:

  • The client is fully informed about the restrictions the lawyer is under in a manner that does not offend s. 148, and consents to the lawyer acting on this basis;
  • The lawyer provides the client with all relevant information, save information that s. 148 requires that the lawyer keep confidential; and

Notwithstanding the restrictions imposed by s. 148, the lawyer reasonably believes that the lawyer will be able to provide effective representation to each affected client. [PCH]
EC December 2003, item 2

A lawyer, including a lawyer who has acted as mediator for the spouses, may act for both spouses in a joint action for divorce, provided:

  • all relief sought is by consent; and
  • both parties have received independent legal advice in relation to the matter. [PCH]

EC October 2002, item 2

A lawyer acting for more than one party in the preparation of a representation agreement must comply with the requirements for joint representation. In determining whether there is a conflict that may prevent the lawyer from acting, a lawyer may wish to meet with the parties separately. The interests of a representative and a monitor to the same agreement are sufficiently divergent that a lawyer cannot represent them jointly. [PCH]
EC October 2000, item 3

Lawyers should not act for both spouses in bringing a joint petition for divorce, even if all matters have been resolved between the spouses. [PCH]
EC April 2000, item 8 (But see EC October 2002, item 2)

A lawyer acting jointly for an insured and the insurer in the defence of a claim for damages may accept insurer instructions to send confidential information to a third party auditor without the informed consent of the insured provided:

(1)   it would be proper for the lawyer to provide the information to the insurer itself; and
(2)   the insurer confirms to the lawyer in writing that:

(a)  the auditors services are required in order to facilitate the provision of legal services in the litigation;
(b)  the arrangements in place with the auditor protect the confidentiality of the information the lawyer provides; and
(c)  the insurer will notify the lawyer if condition i or ii above ceases to be true. [PCH]

EC May 1999, item 6

Where a lawyer represented two clients whose cases were related but did not have an agreement with the clients to represent them jointly, it is improper for the lawyer to disclose to one clients new counsel any confidential information that he is holding on behalf of the other client. [PCH]
EC June 1997, item 6

A lawyer who commences an action for negligence arising out of a mishap that occurs in the home on behalf of a mother and her children, with the mother acting as guardian ad litem for the children, must withdraw when the issue of contributory negligence on the part of the mother is raised by one of the defendants. Unless the lawyer has an agreement with the clients permitting him to continue to act for one of his clients, or unless the lawyer receives permission to continue to act for the mother of the children after a new guardian ad litem is appointed and after the children had obtained independent legal advice, a lawyer should not continue to act for any of the clients. [PCH]
EC June 1996, item 6

The court outlined 17 principles applicable to the disqualification of a lawyer, particularly in a criminal law context, as a result of a conflict of interest.
R. v. Cocks, 2012 BCSC 1336, CanLII - 2012 BCSC 1336 (CanLII)

A lawyer who acted for joint plaintiffs need not be removed from continuing to act for one plaintiff when the other terminated the retainer and sought new counsel. Due to the joint retainer, all confidential information between the clients would have had to be shared. The issues in this case were not likely to put the firm into a position where it would be tempted to use the confidential information of the departing client, particularly because the two parties remained as joint plaintiffs in an action that had common interests. [PCH]
Saddle Lake Indian Band v. Canada, 2006 F.C. 27

Annotations to rule 3.4-10  Acting against former clients

After acting jointly for spouses to prepare wills for each of them, a lawyer must not act for one of the spouses to change his or her will.
EC April 2012

A lawyer was the solicitor and registered and records office for a company. He also acted for the proprietor of the company, D, when she transferred her shares to her three daughters. When D died, she named her daughters as executors and the lawyer acted for them in probating the estate. One of the daughters purchased the shares of her sisters, and a dispute arose as to the value of those shares. The lawyer represented one of the daughters (the defendant) in the action. The Committee found that the lawyer was not in a conflict by representing the defendant. If he were to be a witness to any matters in relation to the litigation, he would be bound to comply with Chapter 8, Rule 9 of the Professional Conduct Handbook. His position as solicitor and records office for the company did not place him in a conflict. The company was not a party to the litigation and he owed no duty to refrain from acting against the plaintiff by virtue of her status as shareholder. His representation of the defendant in the current matter and representation of the plaintiff in her capacity as executor had no common issues. The lawyer did not have confidential information about the plaintiff arising from his former representation of her. [PCH]
EC September 2006, item 7

A lawyer acted for a client in her capacity as administrator of her mother's estate for damages against a Tribal Council for taking her mother's land. Two years previously, the administrator and the Council approached him to act as an arbitrator in the matter. The Council Chief sent the lawyer a letter setting out the history of the dispute, offers that had been made, the status of the documents, and the position of the Department of Indian Affairs. In finding that it would be improper for the lawyer to continue to act as counsel for the administrator, the Committee noted that the lawyer's dealings with the Chief may have permitted him to understand the Council's strengths and weaknesses, apart from any strictly factual information imparted. That understanding could give the administrator an advantage in the ensuing litigation and undermine the Council's confidence in the integrity of both the arbitration and the litigation process. Furthermore, the public's confidence in arbitration generally may suffer. One member dissented, noting that the arbitration process had not commenced and the arbitrator had a clear obligation to share all information provided by him with both parties. The Council would not be prejudiced by him acting as counsel for the administrator. [PCH]
EC April 2006, item 2

In some unique circumstances it may be proper for a lawyer to act on an application to have a committee appointed for a former client. The situation may arise where the lawyer has acted for a client over a period of years and a new client, often a family member, consults the lawyer to have a committee appointed. Such applications may be contentious and require a trial to determine the issues.  If the client does not consent to the appointment of the committee, or is unable to do so, Chapter 6, Rule 7 of the Professional Conduct Handbook will permit a lawyer to act against the client on a committeeship application in some circumstances: if the application is unrelated to the work the lawyer formerly did for the client and the lawyer has no confidential information from that work relevant to the committeeship application. [PCH]
EC May 2005, item 5

A lawyer should not be prohibited from acting for a client in matrimonial proceedings where her estranged husband previously consulted with him on a wills variation matter because it was substantially unrelated to the current matter and the lawyer had no confidential information from the former matter that would be relevant to the current one. [PCH]
EC March 2005, item 6

Lawyer A acted for a client in a matrimonial matter ten years before joining lawyer Bs firm. The file was in storage. B acted for a client being sued by As former client for constructive trust, quantum meruit, and spousal maintenance. Although the conflicts of one lawyer are generally imputed to other lawyers in the firm, if A had any relevant confidential information from her previous representation, it was not necessary to impute knowledge of that information to B, and B could continue to act for his client. [PCH]
EC September 2003, item 6

A lawyer who is listed on a firm's letterhead as associate counsel (who keeps separate financial statements and remits monthly overhead costs to the law firm) is deemed to have the same professional obligations to the public, other lawyers, and the Law Society as if they were practising in a partnership. Those obligations generally require the conflict of one lawyer in a firm to be imputed to all other lawyers in the firm. [PCH]
EC September 2003, item 8

A lawyer was not called to the bar at the time he represented the province in general land negotiations with his current client. He acted in a senior capacity for the province in a relationship of trust and substantial responsibility. His current status as a lawyer did not permit him to act toward the province in any way inconsistent with the obligations flowing from such a relationship. Therefore, the lawyer could not act for the client unless the province consented. [PCH]
EC July 2003, item 4

Where a law firm acts for a client who is the lessee of aboriginal land, and acted on behalf of another client who purchased an assignment of a sub-lease on the land, it is not proper for the firm to act against the sub-lessee in an action to remove her as a tenant. The firm's obligations to the purchaser were to ensure that she received a secure interest in land, and the lessees action may be to deprive her of that interest. [PCH]
EC July 2003, item 5

A lawyer was acting for C Co. in an action for debt and unjust enrichment against F Co. and its director, S. The lawyer had previously been retained by F Co. to conduct a lien search of the same premises in issue, although counsel at a different firm removed the liens for F Co. However, in the course of his consultation with the S about the lien matter, S discussed the work that C Co. had preformed for F Co. The lawyer was prevented from acting for C Co. It could not be said that this work was substantially unrelated to the work he did for his former client. The confidential information he had received might reasonably affect representation of his new client. [PCH]
EC December 2001, item 7

It is generally appropriate to impute the conflicts of one lawyer in a firm to all other lawyers in the firm in circumstances involving Chapter 6, Rule 7 of the Professional Conduct Handbook. However in circumstances where the departing lawyer had only a short consultation with the affected client, left the firm without discussing the facts of the case with any other members of the firm and took all notes with him, it is proper for a lawyer in the firm to act against the client on the basis that the confidential information disclosed to the lawyer who left the firm should not be imputed to the other lawyers in the firm. [PCH]
EC June 2000, item 3 (See also Mottershead v. Burdwood Bay Settlement Co.[1999] Civ. L.D. 379 (B.C.S.C.))

Where an associate in the firm has previously represented a witness while working at another firm, it is improper for a lawyer to act for a plaintiff in an action where the lawyer would have to explore the witness credibility and potential bias in cross examination touching on confidential information the witness would have disclosed to the associate in the former representation. [PCH]
EC May 2000, item 6

A lawyer is in a disqualifying conflict of interest in a divorce proceeding when he represents a client whose wife (and opposing party) was a former client in divorce proceedings that took place approximately ten years ago. [PCH]
EC December 1993, item 5

A lawyer who commenced a foreclosure action for a client against former clients for whom he had acted in a variety of matters, including foreclosure actions, acted in a conflict where the evidence failed to support his contention that the new foreclosure action was unrelated to the former representation. The lawyer was found guilty of professional misconduct.
2013 LSBC 24

A lawyer served as in-house counsel to an Indian Band, and gave advice regarding a utility company owned by the Band. Shortly after leaving her position, she began acting for two Band members (as representatives of other Band members) in bringing an action on behalf of the utility company against the company's directors and officers alleging, amongst other things, breach of fiduciary duty. Three of the respondents in the action were Band councilors and one was the Chief at the time the lawyer had been in-house counsel. The lawyer was found to be acting in a conflict of interest because the action concerned matters and referred to information and facts that would have come to her in her capacity as in-house counsel. [PCH]
DCD 99-32

Case law

A conflict was established where the solicitors for the defendant had acted in the past for the plaintiff on several similar actions. The plaintiff’s practices in those similar matters could, the court determined, be very important to the outcome of the case before it. Even though the solicitors for the plaintiff had erected information barriers, the court held that “even the most carefully constructed information barriers would not in the case satisfactorily mitigate the risk of inadvertent disclosure of confidential information and resulting prejudice to [the plaintiff].”
Kivela Contracting Ltd. v. WCY Rentals Ltd., 2015 BCSC 1681

The court disqualified a lawyer from acting where the lawyer, in representing an accused, attempted to obtain information from the Crown concerning the lawyer’s former clients. The court noted that the perception that a lawyer can defend a client by suggesting that former clients may have been involved in an illegal activity or were the primary target in a police investigations would diminish the public confidence in the integrity and fairness of the criminal justice system.
R. v. Bailey, 2015 BCSC 1332, CanLII - 2015 BCSC 1332 (CanLII)

Counsel for the defendant’s firm in a claim under the Family Law Act had been consulted by the plaintiff (but apparently not retained) some years before in connection with a motor vehicle accident. The plaintiff had also met with a legal assistant from the firm regarding a “matrimonial matter” and provided information about his assets, marital status, home, business and other matters. In declining to remove counsel, the court referred to MacDonald Estate and CNR v. McKercher, but held that the information given was not in fact confidential, was not given to a solicitor, that no legal advice was given, nor that anything close to a solicitor-client relationship was established.
Weber v. Leclerc, 2015 BCSC 1151, CanLII - 2015 BCSC 1151 (CanLII)

In a child custody matter a lawyer was permitted by the Court of Appeal to act for a mother on appeal against the father for the purposes of the appeal only, although the lawyer had previously been consulted by the father prior to the trial and had received confidential information from him that would ordinarily have resulted in the lawyer’s disqualification. The court found there is a discretion in the court to allow counsel to continue where it is satisfied that it is in the interests of justice to do so, and where the dangers of misuse of confidential information are minimal. In this case the court noted that the lawyer took on the case in good faith, there was urgency in having the matter heard and the father had not brought the application for removal of the lawyer in a timely fashion.
Sampley v. Sampley, 2015 BCCA 51, CanLII - 2015 BCCA 51 (CanLII)

The court disqualified a lawyer from acting for a husband against the wife where the couple had lived in a marriage-like relationship and the lawyer had a personal relationship with both. The lawyer had given the wife advice and information concerning family matters, had discussed the future plans of the spouses with each of them, both together and individually, and had acted jointly for them regarding the purchase of property now the subject of the action. The court concluded it was reasonable for the wife to expect that the lawyer would not act against her, and there was a substantial risk that the lawyer’s representation of the husband would materially and adversely affect the wife.
Lutoborska v. Nyquvest 2014 BCSC 2541, CanLII - 2014 BCSC 2541 (CanLII)

A lawyer who took instructions with respect to a company from a director but never acted for him personally, was not precluded from acting for the company against him when he ceased to be a company director.
Richard Zokol Enterprises Ltd. v. Sagebrush Golf Sporting Club Ltd., 2014 BCSC 1666, CanLII - 2014 BCSC 1666 (CanLII)

A lawyer who acted for a wife in a child support matter in 2002 and sought to act for her husband against her in 2013 in a marriage breakdown matter succeeded in discharging the burden resting on him from the possibility of mischief arising from the two matters. Although the Court recognized there was a weak relationship between the 2002 and 2013 retainers, there was no evidence demonstrating that the lawyer had “relevant” information that would be prejudicial to the wife, and this was sufficient to discharge the lawyer’s burden.
Matthews v. Matthews, 2014 BCSC 1179, CanLII - 2014 BCSC 1179 (CanLII) 

Plaintiffs sought to disqualify the lawyer for the defendants where that lawyer had acted for one of the plaintiffs some years before. However, the Court held that the plaintiffs:

  • could not establish that the interest of the relevant plaintiff in the matter on which the lawyer had acted for him some years ago was in any way in conflict with the legal interests of the defendants when the lawyer was retained by them years later, and
  • no relevant confidential information was imparted in the earlier retainer.

McDonald v. McDonald Estate, 2013 BCSC 1732, CanLII - 2013 BCSC 1732 (CanLII)

The respondent society sought an order removing counsel for the petitioners on the basis that the firm had acted for the Society in a previous matter. The court concluded that it is up to a former client to show that a previous relationship between it and the lawyer it seeks to disqualify is sufficiently related to justify removal of the lawyer from a new matter and, in this instance, the respondent Society had failed to make out such a case.
Bhandal v. Khalsa Diwan Society of Victoria, 2013 BCSC 1425, CanLII - 2013 BCSC 1425 (CanLII)

There must be “clear and cogent” evidence that two matters are sufficiently related before an order will be made removing counsel. The fact that the two matters in question contained different parties was one relevant factor among others the court considered in making a determination that the matters were not sufficiently connected or related to justify removal of counsel.
Business Development Bank v. Interline Motor Freight, 2013 BCSC 771, CanLII - 2013 BCSC 771 (CanLII)

A litigant in a family matter sought to remove opposing counsel by alleging she had contacted the lawyer’s firm seeking to retain it in the family matter where counsel was acting for her former husband. However, on the facts, she was unable to establish that in the course of discussions with the firm (established as limited to four occasions where no contact lasted more than two minutes and no more than seven minutes in total) she had disclosed any confidential information to the firm – and even if what she had disclosed could be classified as confidential, it was not used to her prejudice. The court awarded special costs against her for making serious, unsupported allegations during the course of her submissions about the lawyer’s conduct, for which there was no evidentiary basis.
Sun v. Shao, 2013 BCSC 532, CanLII - 2013 BCSC 532 (CanLII)

The court outlined 17 principles applicable to the disqualification of a lawyer, particularly in a criminal law context, as a result of a conflict of interest.
R. v. Cocks, 2012 BCSC 1336, CanLII - 2012 BCSC 1336 (CanLII)

On an application to remove the plaintiff’s lawyer on the basis of conflict, it was alleged by the defendant company that the plaintiff’s lawyer was in possession of confidential information as a result of a previous consultation the lawyer had with the defendant on a matter not unrelated to the plaintiff’s claim against the defendant company. The court found that there were no grounds for such removal since the plaintiff, as a director of the company, was entitled to that information in any event. Moreover, the litigation in question was substantially unrelated to the previous advice provided by the lawyer. [PCH]
Gardner v. Viridis Energy Inc,. 2012 BCSC 19

In a criminal case where the Crown sought disqualification of defence counsel, defence counsel had represented two accused early in the proceedings. One of the accused terminated his retainer with the lawyer but later sought to retain the lawyer again for the same matter and, after receiving independent legal advice, waived his right to confidentiality over the information and consented to the lawyer sharing his confidences with the other accused. The court concluded that the interests of the two accused were not congruent but that the waiver was effective to remove the conflict that had been created by the joint representation. Nevertheless, the court found that the waiver was not sufficient to displace a sense of unfairness and impropriety if the matter were to proceed and concluded that the Crown’s application to have counsel removed must succeed. [PCH]
R. v. Quiriconi, 2011 BCSC 1737

The Crown sought an order removing the accused’s lawyer because she acted in the past as in-house counsel for the Organized Crime Agency of British Columbia (“OCA”), during which time she gained knowledge of and gave legal advice to OCA in connection with a certain criminal investigation that was related to the prosecution of the accused. The court found that the fact the OCA was not directly involved in the proceeding was not determinative of the issue. Despite the fact the lawyer’s involvement with the OCA ended seven and one-half years previously and that she only had a vague recollection of matters, the court was satisfied that she was clearly in receipt of relevant privileged communications and could not therefore continue to act. [PCH]
R. v. Sandhu, 2011 BCSC 1137

A defendant sought to remove the plaintiff’s solicitor because the defendant alleged he had contacted the plaintiff solicitor’s firm shortly after the accident which gave rise to the litigation, and had imparted confidential information. The Court determined that while there was such contact, the evidence did not suggest any of the contacts were such that the defendant had provided confidential information to the firm. This was a case where a reasonable person informed of all the facts would not conclude that there was a risk that the defendant would be prejudiced by the information he provided to the firm, or that anything unjust would arise. [PCH]
Caballero v. O’Callaghan, 2011 BCSC 1023

The Court of Appeal permitted the lawyer, M, to act against a former client (GVRD) concerning the validity and enforcement of expropriations that took place in the 1970s. M now acted for a client against the GVRD, challenging the validity and enforceability of an expropriation by the GVRD in 1971. Although M had certainly received confidential information, it was not relevant to the issue in dispute and would not prejudice the GVRD’s defence of the action. [PCH]
Greater Vancouver Regional District v. Melville
2007 BCCA 410

The plaintiffs were related companies operating taxi businesses. They were clients of the defendant lawyer. They alleged that the defendant breached his fiduciary and contractual duties and duty of confidentiality by acting for a competing taxi company in proceedings before the BC Public Transportation Board. The plaintiffs were opposing those proceedings. There were fair questions to be tried – one was whether the plaintiffs had consented to the lawyer acting for the competitor. The other question was whether the facts relevant to the plaintiff’s application before the Board two years earlier might be relevant to the matters before the Board in the current proceedings. The court granted an interim injunction, restraining the lawyer from acting for the new client before the Board. The lawyer had not discharged the heavy burden that no confidential information had been given to him by the plaintiffs that could be relevant to the current matter. The court declined to grant a permanent injunction restraining the lawyer from ever acting for the new client before the Board. [PCH]
Richmond Taxi Co. Holdings v. Robbins, 2007 BCSC 1680

Gaining insight into the client’s character, and learning of his litigation strategies and attitude to litigation risks may be relevant information to a subsequent retainer against that client, even though they arise out of different matters, and can result in disqualification of counsel. [PCH]
Skjerpen v. Johnson, 2007 BCSC 1290

The lawyer V had acted for the testator on a number of matters, including the drafting of a will for the testator and his then-wife, B. The couple later divorced, but V did not act for either of them.  When drafting the will for the testator, V would have reviewed the testator’s assets, his obligations, and potential claims against the estate. V acted for the plaintiffs, the two children of the marriage between V and B, in a Wills Variation Act application. V did not draft the will in dispute. Although V claimed not to remember anything about the testator’s estate, it was reasonable to presume that confidential information would have been disclosed. It was possible that V’s memory of the information would be triggered during litigation. V had obtained sufficiently related information and could be used to the defendant’s detriment. Furthermore, the testator was not alive to waive privilege. For these reasons, V was disqualified from acting. [PCH]
Knoglinger v. Solbakken, 2007 BCSC 157

N acted for the defendant in a construction dispute. N’s law partner had acted briefly for the plaintiff’s wife in a matrimonial dispute, and had obtained information of the plaintiff’s financial circumstances. This information could be influential in the lawsuit; if the defendant was successful, it could diminish the value of the asset over which the wife had a claim. However, at the time of the application to remove N as counsel, his partner no longer acted for the plaintiff’s wife. While the firm could not use any confidential information against the plaintiff because it no longer had the information, it was not unreasonable for the plaintiff to suspect that information might have been passed to N. The court accepted N’s assurance that confidentiality had been maintained, but concluded that the appearance of justice would be harmed if N’s firm continued to act. [PCH]
Tranfo v. Edel 2006 BCSC 1849

M acted for the plaintiffs in a proceeding to overturn the 2002 election of the executive of the defendant society. In 1997, M had acted for a group of individuals, including B, who had been defeated in an election in 1996 of the same society. M's clients, including B, were successful and became directors of the society. An ongoing dispute within the society existed in 1997 and persisted through 2002. Litigation ensued. M did not act for the society, nor for any individuals involved in the litigation. In the proceedings arising out of the 2002 election, M acted for the plaintiffs to set aside the election results on behalf of some individuals. The defendants were the elected directors and the society itself. B was therefore one of the defendants. After a period of time, an application was made to remove M as solicitor. The BCSC granted the order; the BCCA allowed the appeal, determining that the heart of the current litigation was the 2002 election. Whether it was a properly constituted election depended on particular facts of that election, not what happened in the 1996 election when M had previously acted. The question is whether the lawyer received information that was relevant to the current issue and whether there was a risk that such relevant confidential information will be used to the prejudice of the client. There was no basis for a finding that confidential information was imparted to M by B. [PCH]
Tahal Singh Kaila v. Khalsa Diwan Society 2004 BCCA 236

The court considered whether counsel should be disqualified from acting for the former executors of an estate to secure their claims for fees against a trust deposit in proceedings where the beneficiaries of the estate were applying for a release of the funds. The beneficiaries claimed that the lawyer in question had acted for the former executors when they were supposed to be protecting the interests of the beneficiaries. The lawyer was now acting for the former executors in circumstances adverse in interest to the beneficiaries. The court dismissed the application to disqualify the lawyers. The lawyer, in acting for the executors, had never acted for the beneficiaries. They had been separately represented by counsel themselves, and never had confidential communications with the former executors. Furthermore, the lawyer had acted for the executors for many years without complaint by the beneficiaries. [PCH]
Jackson v. Ritch 2003 BCSC 1942

The plaintiffs alleged that a law firm was in a conflict of interest by acting for the defendant corporation because it had provided advice to the plaintiffs on certain agreements, the validity of which were the central issue of the litigation. The plaintiffs claimed that the firm provided advice to the plaintiffs as individuals (apart from their role as officers of the defendant corporation), and was therefore in a solicitor-client relationship with the plaintiffs. The court found that the firm should be permitted to continue acting for the defendants, having never acted for the plaintiffs nor any of the individuals except in their capacity as directors of the corporate defendant. The plaintiffs did not have a reasonable expectation that their confidential information was to be kept from the defendant and, in any event, confidential information was not imparted. [PCH]
Hem Mines Limited NPL v. Omax Resources Ltd. and Hemmerich 2003 BCSC 1339

The defendant purchased equipment for the use and benefit of the plaintiffs. One piece of equipment was destroyed, but the insurer refused to pay on the policy. The parties jointly instructed the law firm to sue on the insurance contract. Although an action was not commenced, the insurer ultimately paid jointly to the plaintiff and defendant. The plaintiff signed a release. The plaintiffs claimed that the release was executed under duress, and that the proceeds were inadequate; they sought to enjoin the law firm from acting for the defendant. The firm contended that the only occasion on which it could have received confidential information relevant to the action was during the joint engagement when instructed to sue on the insurance contract. The plaintiffs could not expect confidentiality. The court found that the firm had acted jointly for the parties in obtaining the insurance proceeds, and there was a substantial relationship between the two retainers. A reasonably informed person could not be satisfied that confidential information was not disclosed. In this case, the interest that justice appear to be done outweighed the clients right to counsel of choice. [PCH]
Zaworski and Zaworski Logging Limited v. Carrier Lumber 2003 BCSC 565

The parties had met with the plaintiff wife's lawyer about 10 years earlier, after they had separated. The defendant applied to restrain his wife's lawyer from acting for her in divorce proceedings. The application was dismissed by the Supreme Court and leave to appeal was refused. It would have been clear to the defendant that the solicitor could not keep any information confidential from the plaintiff when both were present at the time the defendant revealed the information to the lawyer. The fact that the parties had jointly consulted a lawyer would not necessarily be dispositive of all applications to remove the lawyer. In the circumstances of this case, there was no air of reality that anything of significance to the present litigation was dealt with in the earlier brief meeting between the parties and the solicitor. [PCH]
Tjader v. Tjader, 2002 BCSC 1389; 2002 BCCA 593

The plaintiff claimed that the defendant, then president of a housing society, defamed him by alleging a forgery of documents. The defendants counsel had previously represented the plaintiff in an action alleging a breach of the Municipal Act in that she had, as a municipal councillor, an interest in a contract with the housing society. Counsel for the defendant said there was no relationship between the two actions one related to breach of a statute, whereas the other was an action in defamation. The court disagreed, stating that view of the issues was too narrow and that the integrity and reputation of the plaintiff in the present action was integral to both actions. Once it is shown that there was a previous relationship related to the retainer, the court should infer that confidential information was imparted, unless the solicitor satisfies the court that no information was imparted which could be relevant. The solicitor has a heavy burden to discharge. [PCH]
Harris v. Reichardt 2001 BCSC 1824

A law firm entered an appearance for defendants in an action commenced by the plaintiff, its former client. The court disqualified the firm from acting on the basis that the current matter was sufficiently related to the former retainer that a burden was placed on counsel to establish that no confidential information, which includes an understanding of the opponents strengths and weaknesses, actually did pass. The fact that the plaintiff had consented to counsel acting for the defendant in negotiations that had been conducted with the plaintiff a year prior to litigation did not disentitle the plaintiff from objecting to the representation once litigation between the parties was inevitable. [PCH]
Peel Financial Holdings Ltd. v. Western Delta Lands Partnership 2001 BCSC 1560

The plaintiff operated a restaurant from premises that it owned within a strata unit in the defendant strata corporation. The defendant M owned a majority of the units and had effective control over it. A dispute arose regarding use of a door, and the plaintiff obtained an injunction enabling it to use the door. The plaintiffs lawyer had previously acted for M, who sought to prevent the lawyer from acting in a further application for special costs. The court found that the lawyer was in a conflict because he had defended M in a criminal charge 5 years previously, and had received confidential information attributable to the solicitor-client relationship between himself and M that was relevant to the new matter. He would have obtained from M information of a personal nature that would be relevant in the current matter, since special costs were sought as a result of M's alleged intransigence and arrogance. [PCH]
Ambleside Chinese Restaurant v. Strata Corp VR 575 and Madatali 2001 BCSC 1182

The plaintiff wife argued that a previous separation agreement between the parties was unfair and sought an equal division of assets. The wife's lawyer had acted for the husband's father 6 years previously in a matrimonial action. In disqualifying the wife's lawyer from acting, the court found that he had acquired confidential information about the husband's financial situation, including the financial arrangements between the husband and his father and information about the assets at issue in the current litigation. [PCH]
Starr v. Starr 2001 BCSC 1132

Three corporate plaintiffs brought an action against three defendants for the unauthorized distribution of Asian movies, in violation of the plaintiff's copyright. The plaintiffs applied to restrain the law firm from acting for the defendants because they had previously acted for the plaintiffs in a copyright matter. The court declined to make such an order because there was insufficient factual connection between the prior representation and the current litigation to warrant such an order. Although both actions involved copyrights of Asian movies, the similarity of the matters ended there. [PCH]
LS Entertainment Group Inc. v. Wong 2000 BCSC 1789

The parties had previously consulted with a lawyer about a property dispute with a third person. The husband subsequently retained the same lawyer when they became involved in a marital dispute. The wife sought to disqualify the lawyer, claiming that she had previously discussed their financial circumstances and parenting roles with him and that he had gained insight into her character and circumstances. On appeal, the Court of Appeal upheld the trial court’s denial of the wife’s application and the finding that it was not probable that the lawyer had received confidential information from the wife regarding the marital dispute. [PCH]
Percheson v. Osler, 2000 BCSC 392; upheld 2009 BCCA 84 

The court declined an order restraining a defendant's lawyer from continuing to act in an estate matter on the basis that the lawyer had previously jointly represented both the plaintiff and the defendant in an action for damages arising out of a motor vehicle action six years before. The lawyer had never received any confidential information from the plaintiff or had any contact with her during the previous representation as the lawyer dealt only with the defendant. [PCH]
Sherman v. Ulrich [1999] Civ. L.D. 571 (B.C.S.C.)

An applicant to the defence of an action for the resolution of ownership of company assets commenced nine years earlier sought the removal of lawyer R who acted for two other defendants. The applicant had consulted lawyer O (in R's firm) three years earlier for approximately 45 minutes without retaining him on the same issue. O left the firm one year after the consultation, taking his notes concerning the matter with him. O also gave affidavit evidence he had not disclosed any information or advice he gave the applicant to any member of his former firm. The court declined to remove the lawyer. [PCH]
Mottershead v. Burdwood Bay Settlement Co. [1999] Civ. L.D. 379 (B.C.S.C.)

G was dismissed from his employment; the plaintiff union filed a grievance on his behalf, and retained A to act. A met with G to prepare for the arbitration. The plaintiff union subsequently instructed A to bring a defamation action against G. A arranged for another lawyer to represent G at the arbitration hearing. The court held that A could not act for the union in the defamation action. G was not a casual witness in the arbitration proceedings. A reasonable person, reasonably informed, would perceive that A would have an unfair advantage in going against G in the defamation action. [PCH]
United Food & Commercial Union, Local 1518 v. Christian Labour Association of Canada (19 April 1999), Vancouver, No.C957457, (B.C.S.C.)

The husband sought to prevent the wife's lawyer from acting in divorce proceedings. The lawyer had represented the husband in a number of matters prior to the parties' separation. He knew the husband socially, had prepared joint wills of the parties 9 years previously, and 2 months before the separation had provided the husband with legal advice on a family financial matter. The former social relationship and the wills retainer were not so significant so as to deprive the wife of her choice of lawyer. However, the most recent advice may have given the lawyer knowledge of the husband's approach to financial issues and insight into his character. For this reason, the lawyer and his firm were prohibited from acting for the wife. [PCH]
Burgess v. Burgess (1998) Civ. L.D. 83 (S.C).

The parties retained a lawyer in a house purchase transaction in 1978. Shortly thereafter, the wife sought the lawyers advice regarding allegations of physical and sexual assault by her husband. The lawyer advised both parties that he would not be able to act for either of them. In 1994, the wife commenced an action for the removal of her husbands name from title of the house. The husband retained another lawyer from the same firm that had represented them in the house purchase. The new lawyer was not at the firm in 1978, and the original lawyer had left the firm. The court disqualified the husband's lawyer and law firm from acting. The parties' legal affairs ceased to be routine or simple when the plaintiff consulted the firm about the assault allegations. The basis for the conflict that required independent legal advice in 1978 had not eroded over time and there was a possibility that the wife's confidential information could be used against her. [PCH]
McBurnie v. Bailly (21 October 1998), Victoria, No. 944584 (B.C.S.C.)

A law firm was allowed to act for the plaintiff in spite of the defendants allegation of a conflict. The alleged conflict arose from the fact that the firm had previously acted for the defendant on an unrelated matter during which the plaintiff provided prejudicial and confidential information to the firm regarding securities trading. The court found no factual information linking the current cases with the previous one. [PCH]
Golden Capital Securities Ltd. v. Holmes (26 August 1998), Vancouver, No. C964230 (B.C.S.C.)

A party recovered judgment for $5 million against a regional district, C, and others. The defendants combined insurance was $3 million. C sued ICBC and others, claiming bad faith in admitting liability without proper consultation. A lawyer, W, had advised C at the time. C retained a law firm, R, to act for it in its action against ICBC. One of R's lawyers met with W to prepare him for examination for discovery, as he would have to give evidence on behalf of the district. R later decided to add W as a defendant, and he applied for an order to remove R as solicitor and be enjoined from disclosing any confidential information obtained from him. The Court of Appeal ordered that R be removed from the case. What happened between R and W gave rise to an obligation or duty of fairness to W and he should have been warned of his potential liability. [PCH]
Williamson v. Roberts & Griffin [1997] Civ. L.D. 760 (B.C.C.A)

The plaintiff and defendant were in a common law relationship for ten years. The lawyer was a friend and business partner of the defendant and represented the plaintiff in separate divorce proceedings during that time. When the common law relationship ended, the plaintiff brought an action against the defendant for an interest in their property and the defendant retained the lawyer to act for him. The plaintiff applied to restrain the lawyer from acting for the defendant on the grounds that there was sufficient relationship between her earlier divorce retainer and the current one to prohibit him from acting in the new matter. On appeal, the court found that the connection between the two cases was sufficient to warrant the lawyers removal from the case. The discretion to restrain a lawyer from acting may be applied more readily in the context of family law. [PCH]
Rosin v. MacPhail [1997] B.C.W.L.D. 189 (B.C.C.A.)

Respondent solicitors were prohibited from acting in an action involving a joint venture agreement because a lawyer at the respondent law firm had previously represented the petitioners with respect to a loan, and the president of the petitioner company had had many confidential discussions with a solicitor from the respondent firm with respect to the loan transaction. [PCH]
437192 B.C. Ltd. v. Watson Goepel Maledy [1997] B.C.W.L.D. 1238 (S.C.)

The plaintiffs retained K to prepare their tax returns, and were advised that their previous accountant, D, had given them inadequate advice. They employed a law firm, recommended by K, to bring an action against D. One of the firm's lawyers worked with one of K's accountants to prepare the case against D. Ultimately, K was joined as a defendant. K argued that the lawyers were in a conflict of interest, which required their removal. The court agreed. The relationship of the petitioner accountants with the lawyers was not one of solicitor and client. However, the accountants previous relationship with the lawyers was sufficiently related to the matter from which the firm sought to remove the lawyers so as to presume that the accountants imparted confidential information to the lawyers. [PCH]
KPMG Peat Marwick Thorne v. Davis & Co. (4 September 1996), Vancouver, No. A961214, (B.C.S.C.)

A law firm was retained to act for a plaintiff in an action for damages for the collapse of a retaining wall on a real estate project. Although the law firm had acted for the defendant and its subsidiaries on various matters for many years, it had never acted for the division that was being sued, nor had it ever acted on a matter that would give it confidential information on the present claim. The court assumed there was some conflict, but it did not outweigh the substantial prejudice that would accrue to the plaintiff should it be deprived of its counsel of choice so late in the proceedings. [PCH]
Lafarge Construction Materials Precast Division. v. Lawson Lundell Lawson & MacIntosh (20 October 1995), Vancouver, No. 955214, (B.C.S.C.)

No disqualifying conflict of interest was found when a client who was a shareholder in a family corporation employed the same law firm which acted for the corporation to represent her in divorce litigation against the respondent as the respondent had never had a solicitor-client relationship with the law firm nor communicated confidential information to the firm. [PCH]
Arends v. Arends (27 September 1995), Chilliwack, No D00010607, (B.C.S.C.)

The partner of Crown counsel in a prosecution against the accused had acted for the accused six to nine years before the date set for trial in both civil matters and unrelated criminal charges. Crown counsel had joined the partner's firm two years previously. Due to the lapse of time and lack of relevance to the current charges, a reasonably informed member of the public would be satisfied there was no danger of the transmission of confidential information. And, the timing of the application (four days before trial) gave rise to an inference that the accused's application had been brought for the purpose of delay. [PCH]
R. v. Johnson [1995] B.C.J. No. 2754 (S.C.)

A lawyer retained a specialist law firm to provide tax advice for a client. The client later took his legal business to the specialist firm and asked them to seek a review of the legal services provided by the first lawyer on the basis that he did not provide value for money. The lawyer applied to disqualify the tax firm. The application was allowed on the basis that the confidentiality of the relationship should be protected, whether or not it was one of solicitor and client. The potential existed for the tax firm to acquire special awareness of the first lawyer's knowledge and experience and how he conducted his legal business, which would become relevant on the taxation. [PCH]
308723 B.C. Ltd. v. Syberg-Olsen, Poulsen & Co. (1994), 97 B.C.L.R. (2d) 384 (S.C.)

A lawyer who was a member of the firm that had represented the regional district on a petitioners first application to rezone his property was disqualified from acting for the petitioner when he wished to take proceedings regarding the refusal of his second zoning application under the Judicial Review Procedure Act. The Court of Appeal confirmed the disqualification. [PCH]
Bekar v. Regional District of Bulkley Nechako (1993), 26 B.C.A.C. 78

In a number of civil actions, the defendant petitioned to have the law firm representing the plaintiffs disqualified on the grounds that it was associated with firms in Toronto and Montreal in an international partnership, and the defendant had consulted the Toronto firm on a number of matters, including the defence of the action in question. The application was denied. The Court of Appeal found that no confidential knowledge could be attributed to the Vancouver lawyers as the firms remained distinct entities. [PCH]
Manville Canada Inc. v. Ladner Downs (1992), 63 B.C.L.R. (2d) 102 (B.C.S.C.); affirmed on appeal (1993), 76 B.C.L.R. (2d) 273 (B.C.C.A.).

Annotations to rule 3.4-17 to 3.4-23  Conflicts from transfer between law firms

It is not necessary for a lawyer to withdraw from a case where a (non-lawyer) assistant left opposing counsels employment to work in his office, provided the following steps are taken to protect confidentiality:

  • all relevant files are removed from the assistants work area;
  • the assistant will not work on any of the relevant files;
  • the assistant will have no involvement in any aspect of the files;
  • the assistant is reminded of the sensitivity of the information she obtained during her previous employment and that it must remain confidential; and
  • the other assistants are reminded of the sensitivity of the situation and are directed not to discuss any aspects of the files with the new assistant. [PCH]

EC December 2002, item 5

It is proper for a lawyer employed by a trade union to transfer her employment from the union to management in the same environment provided she complies with the requirements of Chapter 6, Rule 7.4 of the Professional Conduct Handbook. [PCH]
EC July 1997, item 7 

A lawyer was found guilty of professional misconduct for performing legal services for a client when he and his relatives had a financial interest in the client that would reasonably be expected to affect his professional judgement, contrary to Chapter 7, Rule 1 of the Professional Conduct Handbook[PCH]
DD 2009 No. 2
2009 LSBC 17

Case law

The question of whether counsel should be removed where there is an allegation that confidential information was shared does not arise where the affected client has effectively waived solicitor-client privilege.
Brown v. Clark Wilson, 2014 BCCA 185, CanLII - 2014 BCCA 185 (CanLII)

Defendant tobacco companies sought the removal of a law firm in an action on the basis that one of its lawyers had been involved in the defence of the action years before and was in possession of confidential information. The firm had taken measures to screen the conflict at the time it commenced acting in the matter, although that was eight years after the lawyer had joined the firm.
The court was not persuaded the presumption that the lawyer would have shared confidences of the defendants with his colleagues should arise where the conflict only arose many years after the lawyer joined the new firm. The court noted that the ultimate question was “whether the public, represented by a reasonably informed person, would be satisfied that no use of confidential information would occur.” Here, the court concluded that a reasonably informed person, knowing the measures that were put in place when they became necessary, would be satisfied with respect to that issue.
British Columbia v. Imperial Tobacco Canada, Ltd., 2013 BCSC 1963, CanLII - 2013 BCSC 1963 (CanLII)

In matrimonial litigation a wife sought an order removing the husband’s lawyer’s firm as counsel on the ground that lawyer N in that firm had acted for the wife. In 2010, N merged her firm with that of the husband’s counsel, D. The Court referenced Chapter 6 Rule 7.4 of the Professional Conduct Handbook and reviewed Appendix 5, all of which identify responsibilities where conflicts may arise as a result of a transfer between law firms. Even though N and D had not followed every aspect of the Handbook provisions, the court agreed there had, on the particular facts of the case, been substantial compliance with the Law Society guidelines and removal of the firm as counsel was not warranted. Moreover, it was relevant that the wife had known of the planned merger of D and N’s firms for some months and that she had been content to have D continue to act for the husband until it appeared that the litigation would not settle. [PCH]
Salley v. Salley, 2011 BCSC 473

The petitioner was a defendant in several actions. G was his lawyer in these actions and he acquired confidential information about the petitioner.  G then joined the firm (SV), which represented the plaintiffs in actions against the petitioners. G had attended one meeting to prepare the petitioner for discovery after receiving an offer to join SV, but before accepting the offer. Upon joining SV, steps were taken to implement firewall procedures, but it was not fully in place until two or three weeks after G joined the firm. In the meantime, his work did not involve files in which he had a potential conflict. The court dismissed an application to prevent the firm from acting. While a delay in instituting a firewall is fatal in some cases, in this case the “proactive diligence” that SV took was reasonable. There was not complete conformity with Law Society guidelines, but there was sufficient compliance in spirit such that a knowledgeable and reasonable client, witnessing the effect of the good faith effort to protect against disclosure, would conclude that no unauthorized disclosure of confidential information had or was likely to occur in respect of G’s transfer to the firm. [PCH]
Robertson v. Slater Vecchio, 2008 BCCA 306

A law firm, F, represented the defendant city in an action by the corporate plaintiff. An associate of F had previously been an associate at a firm that acted for the plaintiff in related matters. Since joining the new firm, the lawyer had never discussed any information concerning the plaintiff, including the fact that he had been involved in litigation concerning the plaintiff. The client had a close working relationship with F, and did not want to obtain new counsel. The court, however, disqualified F from acting for the defendant. The heavy burden of proof on the law firm that confidential information was not shared is not usually satisfied simply on the say-so of lawyers. F should have implemented measures when it first accepted the client's retainer to alert the members of the firm that it intended to act. This would have revealed that the lawyer had a conflict of interest, causing F to put into place certain measures, such as the ethical screen, or Chinese wall. The wall should be put into place when the possibility of conflicting and sharing confidential information first arises. [PCH]
Alcan Inc. v. Farris, Vaughan, Wills & Murphy, 2004 BCSC 784

The defendant husband sought to disqualify the law firm retained by his wife in matrimonial litigation on the basis that the lawyer in that firm had been an associate in the firm he engaged to convey his interest in the matrimonial home to one of his children the previous year. The lawyer later moved to the firm representing the wife. In refusing the husbands application, the court found that the conveyancing and matrimonial matters were unrelated and that no confidential information was imparted to the husband's law firm in connection with the conveyancing matter that was relevant to the matrimonial litigation. [PCH]
Chan v. Siow, 2001 BCSC 167

Conflicts of one lawyer will not automatically be imputed to the firm, although that outcome appears likely unless the conflicted lawyer no longer practices with the firm and it can be established that no confidential information is at risk. Whether the issue of conflict has been raised in a timely fashion can also be decisive. [PCH]
Cathedral Ventures Ltd. v. Gartrell 2000 BCSC 1020

A law firm was disqualified from acting for the plaintiffs in an action as a lawyer from the defendants firm transferred employment to the firm representing the plaintiff. The lawyer had worked on the defence of the action as an articled student and no institutional mechanisms were put in place by the plaintiff's law firm at the time the lawyer joined the firm to isolate the lawyer from the conduct of the case. [PCH]
Poehler v. Langer [1999] Civ. L.D. 165 (B.C.S.C.)

The BC Court of Appeal considered whether a lawyer should be disqualified from acting in a matter in which a lawyer with whom he shared office space had once advised the opposing party. The two lawyers shared a common receptionist, fax machine and photocopier but had separate telephone lines, filing systems, books of accounts and secretaries. A reasonable member of the public who knew the facts of the case would conclude that no unauthorized disclosure of confidential information had occurred and thus the lawyer should not be disqualified. [PCH]
Baumgartner v. Baumgartner (1995), 2 B.C.L.R. (3d) 126

The court refused an application to disqualify a firm from representing its client when a new partner acquired by merger had previously advised the opposing party. The prior advice, all of which related to labour relations and other employment issues, was not related to the current commercial dispute. [PCH]
Countryside Food Store Ltd. v. Duncan Mall Ltd. [1994] B.C.W.L.D. 564 (S.C.)

An application to disqualify a lawyer from acting on behalf of litigants was allowed, but an order disqualifying the firm from continuing to act in the matter was not allowed. The lawyer in question had been a partner in a firm appointed by the petitioners insurers to defend it in several negligence actions. The lawyer then left that firm and became a partner in the respondent firm, which acted for parties opposing the petitioner in other actions. The respondent law firm had put into effect screening devices suggested by the guidelines included in the proposals of the Federation of Law Societies Committee on Conflicts of Interest. [PCH]
Choukalos Woodburn McKenzie Maranda Ltd. v. Smith, Lyons, Torrance, Stevenson & Mayer (1994), 97 B.C.L.R. (2d) 122 (S.C.)

A law firm was disqualified from continuing to represent a plaintiff in litigation because one of the firm's associates, who was not involved in the file, had previously done legal work for the defendant while at another firm. [PCH]
Macdonald Estate v. Martin [1990] 3 S.C.R. 1235

Annotations to rule 3.4-26.1  Conflicts with clients

 It is not contrary to the rules for lawyers to pay the cost of client disbursements or to advance funds to the client to pay for medical treatment or living expenses. However, the BC Code has provisions that restrict and regulate the circumstances under which lawyers can advance funds to clients (see especially rules 3.6-1, 3.4-28 and 3.4-26.1).
Benchers' Bulletin, Fall 2014, item 1 

A lawyer owned 25 shares in a non-reporting company, at $1,000 each, giving him a 3% share in the company. He had been a director of the company, but had recently resigned. His law firm handled the company’s corporate affairs and acted for the company on the purchase and sale of land and houses. The Ethics Committee was of the opinion that the lawyer’s investment in the company would not reasonably affect his personal judgment, although he should seek further advice if his investment increased or the character of the legal services changed. [PCH]
EC October 2007, item 3

An aboriginal lawyer was a beneficiary of trusts created by the Band for the benefit of Band members. The trusts were intended to promote educational, cultural, and social programs as well as provide benefits to individuals as authorized by the trustees. In the past, individual beneficiaries had received about $90,000 each from the trust capital. The lawyer sought advice on his intention to work as an analyst for the Band in the area of trust law. He would give general legal advice regarding the trusts designed to enhance the trust benefits accruing to beneficiaries, including himself. He did not intend to give advice on the controversial question of encroachment on capital. The Committee regarded the individual and shared financial benefits as substantial. The responsibilities the lawyer would undertake, coupled with the significant personal and shared interests he had in the trusts, would reasonably be expected to affect his professional judgment in the work the Band expected to assign to him. It would be improper for the lawyer to undertake such work. [PCH]
EC January 2007, item 10

A lawyer represented the plaintiff in a Rule 18A application to determine liability in a MVA. The plaintiff was unsuccessful and estimated costs of $2,500 were assessed against her. Lending $1,000 to the client to assist her in paying the costs would not result in the lawyer taking an interest in his clients matter because the action had concluded. [PCH]
EC June 2005, item 4

A lawyer who had a 12.5% unregistered interest in a company that purchased real property for $2.6 million was disqualified from acting as the company's lawyer in an action against the vendor and agent for misrepresentation. His interest would affect his professional judgment. [PCH]
EC December 2002, item 6

A lawyer may take a mortgage against his clients property to secure fees, but must withdraw as counsel if he is joined as a party to litigation involving foreclosure of the property. [PCH]
EC February 1998, item 14

A lawyer may not lend money to a client if the effect of lending money is to give the lawyer an interest in a matter contrary to Chapter 7, Rule 1(a) of the Professional Conduct Handbook, or impair the lawyer's professional judgment contrary to Chapter 7, Rule 1(b) or Rule 2 of the Professional Conduct Handbook. [PCH]
EC June 1997, item 3

A lawyer who acts for a client who has established a British Columbia limited partnership, which will invest in a United States real estate development, is not precluded from investing in the clients limited partnership unit. However, it is improper for the lawyer to perform services for the limited partnership or any services in connection with it after the lawyer acquires an interest. [PCH]
EC February 1997, item 11

Where a lawyer has 21% interest in a company and his sister owns a 5% interest, it is not improper for the lawyer to be responsible for filing the annual reports and preparing the annual resolutions for the company, as the lawyers interest and that of his sister would not reasonably be expected to affect the lawyer's professional judgment. [PCH]
EC December 1996, item 10

A lawyer who is elected to a city council is prohibited from representing a client involved in litigation with the city. [PCH]
EC December 1996, item 12 

A lawyer acted for a village in an appeal before the Environmental Appeal Board and was instructed by his client to attempt to uphold the decision of the village Deputy Director of Waste Management to permit the discharge of effluent generated within a specified area in the village. The lawyer and his partner owned an office building in the specified area and the lawyer stood to benefit financially if the decision of the village official was upheld. The lawyer's partner was chairman of a group that sought to gain intervenor status in the appeal to support the decision of the village and was president of an association that was specifically established to promote the granting of the waste permit. It was not proper for the lawyer to act in the matter as he has a direct or indirect financial interest in the outcome of an issue, and the lawyers partner had an interest that would reasonably be expected to affect the lawyer's professional judgment. [PCH]
EC October 1996, item 11

It is proper for a lawyer to enter into an agreement with a client and a bank for the advancement by the bank of funds to cover the clients disbursements. [PCH]
EC September 1996, item 5

It is improper for a lawyer owning 5% of a company that intends to purchase property for $700,000 to act for the company in the purchase, as the lawyer would be purporting to act as both investor and lawyer. The lawyer's financial interest in the company would reasonably be expected to affect his professional judgment. It is not improper for the lawyer to prepare a shareholder/co-ownership agreement that will govern the relationship between the parties if the lawyer acts only for himself and each individual investor signing the agreement has retained independent counsel. [PCH]
EC July 1996, item 7

It is not improper for a lawyer to act for her mother in a Small Claims Court action with respect to a constructive dismissal matter, as the mother's interest in this litigation would not reasonably be expected to affect the lawyer's professional judgment. [PCH]
EC July 1996, item 11

A lawyer was vice-president of a public company, but owned less than 1% of the total share holdings. Her mother was the majority shareholder and other relatives had interests in the company. She wished to act for the company in collecting a small number of debts and acting on a potential litigation claim with respect to a mineral rights expropriation where the potential amount at issue was $25 million. With respect to the collection of the debts, the lawyer would not reasonably be affected by the personal and family interests she had in the company. However, with respect to the mineral rights expropriation, her financial interest at stake was so great that it would reasonably be expected to affect her professional judgment given the potential personal financial implications for her and her family and the lawyer should not act on that aspect of the matter. [PCH]
EC April 1996, item 4

It is improper to agree to reimburse a client for costs if the client is unsuccessful in her litigation. [PCH]
EC June 1995, item 4

It is improper for a lawyer to provide environmental law advice to a publicly traded mining company in which the lawyer holds shares which represent a significant part of the lawyers net worth, since the lawyer's interest would reasonably be expected to affect his professional judgment. [PCH]
EC September 1994, item 6

A claim of special costs against a lawyer did not create a conflict for the lawyer under Chapter 7 of the Professional Conduct Handbook where the lawyer settled the claim, including the claim of special costs against him, after the client received independent legal advice concerning the claim.
2014 LSBC 52

A lawyer who negotiated a finder’s agreement for a client when he had an interest in the subject matter of the agreement, and took compensation from one of the parties to the agreement without making full disclosure to the his client was found to have engaged in professional misconduct in so doing.
2013 LSBC 23

A lawyer both represented a client and invested his own money in an investment scheme that ultimately lost thousands of dollars of the lawyer’s own money and the money of other investors.  During the course of the representation the lawyer engaged in conduct intended to give shareholders the impression that their investment was secure and intended to generate earnings, although he knew that two government securities regulators were investigating the investment as a fraudulent scheme.  The lawyer was found guilty of professional misconduct for engaging in conduct that gave shareholders the impression that their investments were secure, for placing himself in a conflict of interest, for acting in a manner that had the potential of perpetrating a fraud and for not giving full and proper legal advice.  [PCH]
DD 2010: No. 2 Summer  
2010 LSBC 03

A client must receive independent legal advice prior to executing a codicil naming a lawyer as beneficiary who has the discretion to choose and make a charitable disposition with the money. [PCH]
DCD 03-06

A lawyer was in a conflict of interest situation where he acted for a housing society, served as director of a company that loaned money to the society, made a personal loan, and loaned more money through his personal management company. The mortgages were secured to himself and his company. He executed discharges of his mortgage security in transactions in which he represented the interests of the client and further acted for the client with respect to sales when he had an interest as a mortgagee in the transactions, although he was not repaid from the sale proceeds and not until after the first mortgage was discharged. His conduct in acting while in a position of conflict amounted to professional misconduct. [PCH]
DCD 02-13

A lawyer performed legal services respecting security for a loan in which he had a personal interest. He placed his own interests in direct conflict with his clients and did not advise her on the nature of her security or recommend independent legal advice. Such actions constitute professional misconduct. [PCH]
DCD 01-25

A lawyer represented his wife on an indemnity agreement, a matter in which he had a personal interest, and failed to recommend that she obtain independent legal advice. The lawyer had drafted the indemnity on the spur of the moment to protect his wife's interests and there had been no apparent prejudice to anyone. His breach of this Rule did not have the requisite degree of disgrace or dishonour, nor was it tantamount to a breach of duty to the public or the state, so as to constitute professional misconduct. [PCH]
DCD 01-23

A lawyer arranged for a client to loan money to his daughter's company. He used confidential client information in arranging for the loan, had an indirect financial interest in the matter, failed to advise the client that he was not acting for her in the matter and failed to advise the client to obtain independent legal advice. Such actions constitute professional misconduct. [PCH]
DCD 01-18

A lawyer acting for clients who loaned money for investments in real estate developments in which he had a personal interest was in a conflict of interest when he failed to recommend that clients obtain independent legal advice, acted recklessly as to their interests in securing their investments, failed to disclose information to clients, deceived clients, delayed in refunding fees to a client and misappropriated client funds and wrongfully converted funds. [PCH]
DCD 01-11

A lawyer provided legal services to a person who was to lend $40,000 in a mortgage transaction even though the lawyer's personal interest in the loan conflicted with the interests of his client. The lawyer later informed another person, who ultimately assumed responsibility for paying off the mortgage loan, about the amount outstanding but did not disclose that he had previously had a personal interest in the loan. The lawyer admitted to professional misconduct by acting for the client when his interests conflicted with hers and to conduct unbecoming in failing to disclose his personal interest in the debt. [PCH]
DCD 96-9

A lawyer represented a company owned by his father-in-law which was reorganized to purchase an interest in another company, and which involved a transfer of ownership to the father-in-law's children and their spouses, including the lawyer and his wife. The lawyer then acted as the solicitor for the company in the reorganization and purchase transaction. The lawyer admitted to professional misconduct by acting for the company when he had a personal interest in receiving shares. [PCH]
DCD 96-3

A lawyer was found guilty of professional misconduct when he entered into an agreement to develop property with clients. In carrying out the transaction, he made it difficult for his clients to distinguish whether he was acting as a lawyer or a businessman. He drafted an agreement that was onerous and unfair to the clients. He also failed to take steps to ensure that the clients received independent legal advice. Although he did not intend to trick his clients into entering the transaction without proper advice or to take advantage of them, he ought to have known that they would rely on him to protect their interests. [PCH]
DCD 95-6

A lawyer was found guilty of professional misconduct when he acted as a committee under the Patients Property Act and invested the patients funds in a company in which he had an interest (which investment was not authorized under the Trustee Act). [PCH]
DCD 94-12

Case law

The plaintiff sought damages against the defendants for wrongful dismissal. A was counsel for both defendants. He was also a member of the first defendant and held executive positions within it. The plaintiff wanted to examine A for discovery and brought an application to enjoin A and his firm from representing the defendants. The court noted two grounds to the application: first that A was nominated as a witness and second, that A had a membership (and executive interest) in one of the defendants. The court found that the first issue was not relevant because A had not yet given viva voce or affidavit evidence. As for the second issue, membership alone was not enough to restrict legal services. The membership interest must reasonably be expected to affect the lawyer's professional judgment. The plaintiff had not proven that fact and the application was dismissed. [PCH]
Jacks v. Victoria Amateur Swim Club 2003 BCSC 845

Annotations to rule 3.4-26.2  Conflicts with clients

A lawyer may take a mortgage against his clients property to secure fees, but must withdraw as counsel if he is joined as a party to litigation involving foreclosure of the property. [PCH]
EC February 1998, item 14

Annotations to rule 3.4-28  Doing business with a client – Independent legal advice

 It is not contrary to the rules for lawyers to pay the cost of client disbursements or to advance funds to the client to pay for medical treatment or living expenses. However, the BC Code has provisions that restrict and regulate the circumstances under which lawyers can advance funds to clients (see especially rules 3.6-1, 3.4-28 and 3.4-26.1).
Benchers' Bulletin, Fall 2014, item 1 

Annotations to rule 3.4-38  Testamentary instruments and gifts

The placing of a charging clause in a will at the request of a client does not constitute a "gift or benefit" within the meaning of rule 38.
EC April 2013

Annotations to rule 3.6-1  Reasonable fees and disbursements 

 It is not contrary to the rules for lawyers to pay the cost of client disbursements or to advance funds to the client to pay for medical treatment or living expenses. However, the BC Code has provisions that restrict and regulate the circumstances under which lawyers can advance funds to clients (see especially rules 3.6-1, 3.4-28 and 3.4-26.1).
Benchers' Bulletin, Fall 2014, item 1 

A lawyer who expects to receive a commission from a bank for forwarding funds to the government on behalf of a client who hopes to immigrate to Canada must give a bona fide estimate of the amount of the commission to the client before the precise amount is known, and to advise the client about the precise amount when the lawyer knows the amount.  [PCH]
EC May 2011, item 4

When costs associated with legal services of a contract lawyer are billed to a client as fees for legal services, the amount that may be charged for such services is governed by this Rule. Where a lawyer hires a contract lawyer to do legal research, for example, and incurs expenses in contracting for the work by reviewing the work or otherwise adding value to the work, it is proper to bill the client for that work, provided the charges are reasonable. Such charges must be disclosed to the client and where the charge is for value added to the work, the work should be billed to the client as a fee, not a disbursement. [PCH]
EC February 2006, item 5

It is proper for a lawyer to take a percentage of real estate commission as a fee, provided the choice to pay the lawyer in this way is that of the client and the client's right to review the lawyer's bill is not impaired. [PCH]
EC Oct 5 2000, item 10

A lawyer may add surcharges to disbursements if they reasonably reflect actual costs incurred on behalf of the client, and they are disclosed in the statement of account to the client in accordance with this Rule. [PCH]
EC October 1997, item 5

Where a lawyer receives air mile benefits as a result of work done for a client, a single transaction with a client might fall within a de minimis rule if the air miles accruing to the lawyer as a result of the transaction are of very small financial benefit. However, in cases where a lawyer may receive a substantial benefit because of the size of a single transaction for a client or because the lawyer acts on multiple transactions, it would be necessary for the lawyer to make full disclosure of the benefit and obtain the client's consent to receiving it pursuant to Chapter 9, Rule 8 of the Professional Conduct Handbook. [PCH]
EC February 1997, item 12

Where a law firm hires a lawyer to provide services to one of the firm's clients on a contract basis, it is proper for the law firm to surcharge the client for that lawyer's bill where the firm incurred expenses in contracting for that work or added some value to his work. Whether the contract lawyers cost should be billed as a disbursement or as a fee depends on the terms of the retainer with the client. [PCH]
EC September 1996, item 3

Clients cannot be billed for efforts made by a lawyer to settle accounts for unpaid fees; nor can a lawyer charge the client with respect to his professional obligations which would include discussions with the Law Society concerning the lawyer’s obligations as an officer of the court.
In Re Krahn, 2014 BCSC 2003, CanLII - 2014 BCSC 2003 (CanLII)

A lawyer who negotiated a finder’s agreement for a client when he had an interest in the subject matter of the agreement, and took compensation from one of the parties to the agreement without making full disclosure to the his client was found to have engaged in professional misconduct in so doing.
2013 LSBC 23

A lawyer approved and submitted fraudulent or inflated accounts of his client's children for a publicly funded criminal trial. His neglect in carefully reviewing those accounts and submitting them as disbursements to his own account amounted to a blatant and cavalier disregard for the duty owed to the funder. It exhibited a marked departure from the standard of conduct the Law Society expects of its members and he was guilty of professional misconduct. [PCH]
2005 LSBC 16

A lawyer charged and billed to clients approximately $75 in personal disbursements, which he believed represented a fair set-off for disbursements that he paid personally on their behalf while working at home. Although it was done for administrative convenience, it constituted professional misconduct. [PCH]
2004 LSBC 38

A lawyer on a legal aid retainer will be guilty of professional misconduct if he accepts money from the client on the account. [PCH]
DCD 03-04

A lawyer who prepares an inflated account in an attempt to seek compensation for work he had already done for his clients on a pro bono basis is guilty of professional misconduct. [PCH]
DCD 01-26

Receiving payment from a client while on a legal aid retainer for the same services constitutes professional misconduct. [PCH]
DCD 99-01

In reviewing the fairness and reasonableness of the fees of a receiver and its counsel in the context of billable hours, the Ontario Court of Appeal noted that in making such an assessment all factors, including time spent, should be considered. However, value provided should pre-dominate over the mathematical calculation of hourly billing rate multiplied by time spent.
Bank of Nova Scotia v. Diemer, 2014 ONCA 851, CanLII - 2014 ONCA 851 (CanLII)

A fee agreement is subject to an overarching requirement, grounded in the solicitor’s fiduciary duty to the client and the profession’s duty to the public, to ensure that the solicitor’s remuneration under the agreement and the final bill are reasonable in amount, reflecting the actual work put in and the actual risk assumed by the solicitors. (Leave to appeal to the Supreme Court of Canada was dismissed, May 15, 2014.)
Mide-Wilson v. Hungerford Tomyn Lawrenson and Nichols, 2013 BCCA 559, CanLII - 2013 BCCA 559 (CanLII)

Annotations to rule 3.6-7  Division of fees and referral fees

A lawyer acting for plaintiffs in class proceedings is not prevented by Chapter 9, Rule 6 of the Professional Conduct Handbook from making submissions about allocation of fees between lawyer and plaintiff out of approved class counsel legal fees and may accept such fees when ordered by the court. [PCH]
EC May 2009, item 3

Provided a lawyer does not pay for the referrals, a lawyer is not prohibited by Chapter 9, Rule 2 of the Professional Conduct Handbook from acting for a client who comes to him through a divorce centre, which provides materials on the general subject of divorce and provides, without fee, names of lawyers that practice in the area of family law. [PCH]
EC April 2000, item 6

A lawyer who uses the services of a commercial lawyer referral service does not violate Chapter 9, Rule 2 of the Professional Conduct Handbook provided the following criteria are met:

  • the service does not charge a fee to the client;
  • the fee the lawyer pays is not for the referral for a particular client, but is a fee for the lawyer's name to be placed or maintained on a roster of available lawyers;
  • the service maintains a roster of lawyers to whom clients are referred after the service determines the area of law in which the lawyer's services are required;
  • the fee charged to a lawyer is a flat fee and does not reflect the number of referrals made; and
  • when the client contacts the referral service, the service provides the client with information about several different lawyers who practice in a given area and leaves it up to the client to determine which lawyer, if any, to contact. [PCH]

EC March 2000, item 7

Where the vendor of a law practice is no longer a member of the Law Society, the payment of compensation by the purchaser is not a division of a client's fee within the meaning of the Rule. [PCH]
EC October 31 1996, item 4

A lawyer acting in a mutual referral relationship with a Credit Union, and who is not paid any fee by the Credit Union for giving advice, is not prohibited from giving free advice to Credit Union members who have received a coupon entitling them to hour of free advice from the lawyer. [PCH]
EC September 1995, item 10

Provided that a lawyer does not breach confidentiality to his client in the course of calculating his wife's share of a law corporation's profits, the lawyer may enter a matrimonial settlement where the wife receives an annual payment equal to 10% of the profits of the law corporation in exchange for her interest in his law practice. [PCH]
EC March 1994, item 3

 Annotations to rule 3.7-1  Withdrawal from representation

A lawyer need not have good cause for withdrawal and need not be able to give reasonable notice to the client if the lawyer can comply with the withdrawal obligations set out in rules 3.7-2 or 3.7-7: there has been a serious loss of confidence between the lawyer and client in rule 3.7-2, or any of the events contemplated by rule 3.7-7 (a), (b) or (c) are relevant.
EC July 2013, item 8

Unless a lawyer leaving a firm and the law firm agree otherwise, a communication to clients advising of the lawyer’s departure and informing the client of the client’s right to have either the firm or the departing lawyer continue the client’s representation must not include a marketing section or materials.  [PCH]
EC July 2011, item 3  

Chapter 3, Rule 11 of the Professional Conduct Handbook contemplates clients with active matters and does not refer to clients whose matters are completed.  [PCH]
EC June 2009, item 6

There is no necessary conflict between Chapter 10, Rule 10 of the Professional Conduct Handbook and the Criminal CaseFlow Management Rules, which seem to require the presence of counsel at certain procedural stages of criminal proceedings. It is proper for counsel to enter into an agreement with an accused person to act at trial only, and not to act for the accused in any procedural matters leading up to the trial. Of course, counsel would have an obligation to explain to the client any risks that a limited retainer of this nature might carry for the client. [PCH]
EC November 30, 2000, item 9

Note: Prospective clients includes existing clients on new matters. [PCH]
EC May 1999, item 7

Restrictive covenants, including those with geographic restrictions, that may affect a lawyer's ability to act for prospective clients are not prohibited by the Professional Conduct Handbook, but in some cases they may be unenforceable at law. [PCH]
EC, March 1998, item 12

It is not inconsistent with Chapter 10, Rule 10 of the Professional Conduct Handbook for a lawyer to provide anonymous drafting assistance to a client. [PCH]
Recommendation 8 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008 

A lawyer was found guilty of professional misconduct by improperly withdrawing from a criminal trial and abandoning his client in mid-trial, and by being discourteous and disrespectful to the court. [PCH]
DD 2008 No. 1 March
2007 LSBC 55

Failing to provide information to an unrepresented party about the limitations of the retainer does not amount to professional misconduct. [PCH]
DCD 00-16

Case law

Where plaintiffs opposed their lawyer’s application to withdraw as counsel, not because they wanted him to continue to act, but because they wanted some concessions and some explanations from him, the court concluded the imposition of conditions on the lawyer before the withdrawal was permitted were not appropriate in the particular circumstances of the case. In order to justify conditions, there must be evidence upon which to impose them, and the plaintiffs had not adduced such evidence. [PCH]
Sandhu v. Household Realty Corp
, 2011 BCSC 498

Superior courts (as a function of their inherent jurisdiction) and statutory courts, (in connection with their authority to control their own process) can require counsel to continue to represent an accused where counsel’s reason for withdrawal is the non-payment of fees, although this power must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice. [PCH]
R. v. Cunningham, 2010 SCC 10 

Annotations to rule 3.7-2  Optional withdrawal

A lawyer need not have good cause for withdrawal and need not be able to give reasonable notice to the client if the lawyer can comply with the withdrawal obligations set out in rules 3.7-2 or 3.7-7: there has been a serious loss of confidence between the lawyer and client in rule 3.7-2, or any of the events contemplated by rule 3.7-7 (a), (b) or (c) are relevant.
EC July 2013, item 8

It is not proper for a lawyer to use the threat of withdrawal from a case to induce a client to accept a settlement. [PCH]
EC July 1995, item 8  

Case law

Counsel for the plaintiff filed a trial certificate 18 days before trial, but 5 days later had, pursuant to Rule 16(5), sent a notice of intention to withdraw as solicitor to his client and to the defendant on the basis that he had been unable to obtain instructions from his client. Counsel for the defendant filed a notice of objection to the withdrawal. Counsel was permitted by the Court to withdraw on the first day of trial. [PCH]
Varner v. Vancouver (City), 2009 BCSC 371

Annotations to rule 3.7-3  Non-payment of fees

A lawyer acted for a legal aid client in an immigration matter and was refused extra fees by the Legal Aid Society (and upheld by the Registrar) when the case was completed. He queried the propriety of accepting legal aid retainers he did not expect to be able to complete and the circumstances under which he may withdraw from legal aid cases. The Committee found that the lawyer had an obligation to deal with both the client and the Legal Services Society in good faith. He should not accept an immigration retainer that he does not expect to be able to complete for the fee offered, unless the Society and the client agree to such an agreement. Once the lawyer has accepted the case, Rules 1 and 2 of Chapter 10 of the Professional Conduct Handbook govern withdrawal. If they do not apply, the lawyer can withdraw under Chapter 10, Rule 3 of the Handbook if it is not unfair to the client and is not done for an improper purpose. This will depend on the particular circumstances of the case. [PCH]
EC June 2006, item 3

A lawyer acted for a client on an extradition matter for a period of time. The proceeding involved a fitness hearing, during which the government agreed to pay for legal fees. The client was not successful in securing legal aid for the balance of the extradition hearing, nor could he afford the lawyer's legal fees. The lawyer, a sole practitioner, could not take on the burden of a long hearing, in another city, without compensation. However difficult it may be, the lawyer had to allow sufficient time before withdrawing to enable the client to obtain the services of another lawyer and to enable the other lawyer to prepare adequately for trial. [PCH]
EC March 25, 2003

Case law

Superior courts (as a function of their inherent jurisdiction) and statutory courts, (in connection with their authority to control their own process) can require counsel to continue to represent an accused where counsel’s reason for withdrawal is the non-payment of fees, although this power must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice. [PCH]
R. v. Cunningham, 2010 SCC 10

Counsel applied to withdraw and the client opposed the application. The lawyer was in the awkward position of asserting that there had been a total breakdown of their relationship without being able to divulge the background to the dispute. The court has no power to order counsel to continue to act if counsel has decided he can no longer represent the client. Issues that lie properly within the domain of counsel and client circumscribe the court’s scope of inquiry. Counsel could not be ordered to continue to act. If the client felt that the lawyer was acting improperly, the proper recourse was for him to complain to the Law Society. Proper regulation of the integrity of lawyers will require, occasionally, access to confidential or privileged information. The lawyer is able to disclose such information to the Law Society during the investigation. This protects the independence of lawyers from state interference, while protecting the public interest in ensuring there is a method to regulate the conduct of lawyers. [PCH]
Lau v. Rai 2007 BCSC 917 

Annotations to rule 3.7-4  Withdrawal from criminal proceedings

When a Legal Services Society funding reduction prevents it from paying lawyers who have agreed to act as duty counsel in the future, lawyers may withdraw from that commitment by giving reasonable notice to the court of their intention to withdraw. Reasonable notice for duty counsel work may be as little as one day, with no distinction between accused who are in custody and those who are not. [PCH]
EC March 2002, item 6

Annotations to rule 3.7-7  Obligatory withdrawal

A lawyer need not have good cause for withdrawal and need not be able to give reasonable notice to the client if the lawyer can comply with the withdrawal obligations set out in rules 3.7-2 or 3.7-7: there has been a serious loss of confidence between the lawyer and client in rule 3.7-2, or any of the events contemplated by rule 3.7-7 (a), (b) or (c) are relevant.
EC July 2013, item 8

Annotations to rule 3.7-9  Manner of withdrawal

1. A lawyer is required to provide electronic documents to a former client on request even when the lawyer has already provided them in the ordinary course of providing legal services to the client.
2. A lawyer is obliged to make reasonable efforts to provide electronic documents the client has requested, whether the client requests identifiable documents or makes a general request for documents. The lawyer is entitled to negotiate for the purposes of trying to settle a reasonable number of documents to be provided.
3. It is proper for a lawyer to charge a reasonable amount to the client for expenses associated with providing the documents, including the cost of materials required to do so.
4. Where a client is entitled to be provided documents in electronic form, the lawyer must provide them within a reasonable time. [PCH]
EC November 2009, item 4  

A lawyer has an ethical duty, on the request of the client, to provide a client with documents in the possession of the lawyer that the client is entitled to have at law. Where a client requests a lawyer to provide documents in electronic form, a lawyer has an obligation to provide copies of the documents in the same electronic form in which the lawyer holds them at the time of the client's request. [PCH]
EC December 2008, item 2

A lawyer who withheld client files after he and the client settled a fee dispute in relation to those files was found guilty of professional misconduct. [PCH]
DCD 92-5


[BC Code] refers to an annotation that was created during the time the BC Code was in effect (from January 1, 2013) and is not based on or does not refer to a provision of the Professional Conduct Handbook.

[PCH] refers to an annotation to the former Professional Conduct Handbook, which was in effect from May 1, 1993 to December 31, 2012. Lawyers should consider the possible differences between the Handbook and the BC Code when determining the extent to which an annotation is still relevant.

EC refers to Ethics Committee minutes. For example, the reference "EC March 2005, item 6" refers to item 6 of the Ethics Committee minutes in March 2005.

DD refers to Discipline Digest. For example, the reference "DD 04-05" refers to discipline digest number five in 2004.

DCD refers to Discipline Case Digest. For example, the reference "DCD 01-27" refers to discipline case number 27 in 2001. (Note that in 2007 Discipline Case Digests were phased out and became Discipline Digests.)

LSBC refers to Law Society hearing reports. For example, the reference "2003 LSBC 20" refers to hearing report number 20 in 2003.

For more information on the annotated BC Code, see the Introduction to the Code of Professional Conduct for BC.