Transferring Between Law Firms - Types of Transferring Lawyers and Procedures continued

It is possible the transferring lawyer possesses relevant information respecting the former client but that is not confidential information that might prejudice the former client if disclosed to the new firm. In such circumstances, the new lawyer should execute an affidavit or solemn declaration to that effect and the new firm must:

  • notify its client and the former client (or the former client’s lawyer when the client has representation) of the relevant circumstances and the firm's intended action under Chapter 3, rules 3.4-17 to 3.4-26 of the BC Code; and
  • deliver to the client and former client (or their lawyer if applicable) a copy of the affidavit or solemn declaration executed by the transferring lawyer.

(See BC Code, Chapter 3, rule 3.4-22)

While execution of an affidavit or solemn declaration is permissive under rule 3.4-22, it is important to note that once it has been executed, the delivery of the document is mandatory.

Chapter 3, rules 3.4-20 and 3.4-22 of the BC Code establish two schemes based on the sort of knowledge the transferring lawyer possesses. If the former client does not consent, the transferring lawyer who possesses either relevant or confidential information (as set out in rules 3.4-20 and 3.4-22) must not participate in the new firm's representation of its client in the matter or disclose any confidential information respecting the former client (BC Code, Chapter 3, rule 3.4-23). In addition, absent the former client’s consent, no member of the new firm may discuss the representation of its client or the former firm's representation of its client with the transferring lawyer to whom rules 3.4-20 or 3.4-22 applies (BC Code, Chapter 3, rule 3.4-24).