Transferring Between Law Firms - Types of Transferring Lawyers and Procedures
The result of the transferring lawyer possessing confidential information relevant to the matter (as described in Chapter 3, rule 3.4-18 of the BC Code) respecting the former client that may prejudice the former client if disclosed to a member of the new firm, is that the new firm must cease representing its client in the matter unless:
- the former client consents to the new firm's continued representation of its client; or
- the new firm establishes that:
- it is in the interest of justice that it continues representing its client in the matter, having regard to the relevant circumstances, and
- it has taken reasonable measures to ensure no disclosure of the former client's confidential information will occur to any member of the new firm, or
- where the former client has implicitly waived solicitor-client privilege. (see Brown v. Clark Wilson LLP, 2014 BCCA 185)
This reveals how critical it is to have a robust conflicts checking system in place. While it is possible the former client will consent to the new firm’s continued representation of its client, it is possible they will not. It is essential to deal with issues arising out of transfer between firms promptly; failure to raise such issues promptly may prejudice clients and may be viewed as sharp practice on the part of the lawyer who failed to raise the issues in a timely manner.