Conflicts: The Basics - Conflicts and the Courts

The Supreme Court of Canada has recognized in the landmark case MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 that while courts are not bound to apply codes of professional ethics in asserting their jurisdiction to remove a solicitor of record from the case in situations where a conflict of interest exists, the court should consider expressions of professional standards contained in a code of ethics as an important statement of public policy. In that case Sopinka J. held that the Legislature has entrusted to the governing bodies the role of developing standards in the profession and the court's role is merely supervisory, extending to this aspect of ethics only in connection with legal proceedings.

In MacDonald Estate, the Court indicated that two questions must be answered in a typical case:

  1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? To meet this requirement the solicitor must, without revealing specifics of the privileged communication, satisfy the court that a reasonable member of the public would accept that no confidential information relevant to the new matter passed between solicitor and client during the conduct of the previous matter. If it is shown that a previous relationship (sufficiently related to the retainer) existed, the court should infer that confidential information was imparted unless the lawyer can discharge the burden of showing that no relevant information could be imparted.
  2. Is there a risk the confidential information will be used to the prejudice of the client? A lawyer who has relevant confidential information is automatically disqualified from acting against a client or former client. Further, there exists a strong inference that lawyers who work together share confidences, and clear and convincing evidence is required to show that all reasonable measures have occurred to ensure no disclosure will take place between the lawyer who possesses confidential information about the client against whom another lawyer in the firm is acting.