What is a conflict and it what situations can a lawyer be conflicted out of acting for a person? This situation arises often when a married couple has dealt with a lawyer together in the past.
Example:
A married couple purchased a property together during their marriage. To complete the purchase of the property, they both retained a lawyer who assisted them in the purchase. The parties separate. The lawyer, who assisted with the completion, is now representing the husband in the family law proceeding. Is this a conflict?
The test for assessing whether a conflict exist arose in the case of Funk v. Williams, 2017 BCSC 2136, where the Honourable Mr. Jenkins stated:
At paragraph [19] of the decision, typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?
What the above means is:
(1) Did either party receive confidential information that is relevant to the new representation of the husband against the wife?; and
(2) Is there a risk of prejudice?
Prejudice essentially means whether harm would be done to the wife if this lawyer was permitted to represent the husband. Could confidential information disclosed from the property purchase be used in the family law dispute?
In this case, the Honourable Mr. Justice Jenkins considered whether confidential information from the prior matter was relevant to the current proceeding. The husband and wife had jointly retained the lawyer to assist with the purchase of a property. Since it was a joint retainer, the Court held that information disclosed to the lawyer during the joint representation was not confidential as between the two clients. Therefore, neither party could claim privilege over such information in relation to the other.
The lawyer had a duty of confidentiality to both of his clients (the husband and the wife) and there could be no confidentiality between the clients.
The wife brought on an application to have the lawyer removed. Based on the above assessment, the application was dismissed by the court.
There are situations where a lawyer is in conflict, and an important decision has to be made whether to challenge that lawyer’s ability to represent one of the parties. If confidential information has been disclosed and could cause prejudice, it can become a difficult situation.