Acting Against Clients - Acting Against Former Clients

Chapter 3, rule 3.4-20 of the BC Code deals with "law firm disqualification." Under the broader category of lawyers transferring between law firms, you must not represent a client for the purpose of acting against the interests of a former client unless:

  • you inform the former client you propose to act in such circumstances and the former client consents to the new representation; or
  • the new representation is substantially unrelated to your representation of the former client and you do not possess confidential information from the prior representation that might reasonably affect the new representation.

(See BC Code, Chapter 3, rules 3.4-10 and 3.4-11)

Exercise caution when you propose to act against a former client, and read the provisions of Chapter 3, rule 3.4. The prohibition in Chapter 3, rule 3.4-10 is not simply acting against a former client, it is acting against the interests of a former client. Consider the potential scope of this wording and don't be too quick to dismiss a potential conflict.

For example, Bob, your client, has had you represent Cluckychicken Co. in a number of complaints to the Workers' Compensation Board. Loretta hires you to represent United Frying Pan Inc. in its hostile takeover bid for Warm Wooly Mittens Ltd. Warm Wooly Mittens Ltd. is a subsidiary company of Cluckychicken Co. The best course of action, if you do propose to act against Warm Wooly Mittens Ltd. is to obtain Cluckychicken Co.’s consent to the new representation.

If consent is refused, and you then decide to try and fit within the second exemption, ask yourself whether your client is likely to object and whether you can discharge the burden of proving that the matters are substantially unrelated and that you do not possess confidential information from the prior representation that might reasonably affect the new representation. Although you are not required to unreasonably fetter your practice, you owe a fiduciary duty to each client and should bear in mind that the profession is more than a mere money-making business. When in doubt, contact the Ethics Staff Lawyer, or the Practice Advisors of the LSBC for guidance.