Acting Against Clients - Acting Against Current Clients continued

The best practice in these situations is to obtain explicit client consent. While it might not be too difficult to show that the matters are substantially unrelated, clearing the hurdle of proving you do not possess confidential information arising from the representation that might reasonably affect the subsequent representation is more challenging. However, client consent may be inferred (absent contrary instructions) if you reasonably believe the client would consent to the matter because the client has:

  • previously consented to you, or another lawyer, acting for another client adverse in interest;
  • commonly permitted a lawyer to act against them while retaining the same lawyer in other matters to act on the client's behalf; or
  • consented, generally, to you acting for another client adverse in interest.

(See BC Code,Chapter 3, rule 3.4-2)

Inferred consent is most common in situations where you are dealing with an institutional client that allows lawyers to act both for and against it (e.g., the LSBC, ICBC, and various government bodies). See the article Lawyers Can Act for One Client Against Another Client in Limited Circumstances in the July-August 2001 Benchers' Bulletin for more information.

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