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CCCA_V2No4_ConflictMgmt-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 11/24/08 2:51 PM Page 29 Feature Murray Aust Senior Counsel Royal Bank of Canada, Toronto outside the courts. As a client, he doesn’t have the time or the issue greatly affects clients, preventing them from retaining their inclination to spend money on getting conflicts issues resolved choice of counsel because of work that lawyer did or is currently through the judicial process. doing on a totally unrelated matter for someone else. The task force’s recommendations come in several categories, The CBA weighs in perhaps the most significant of which relates to the duty of loy- In light of divided court decisions and inconsistent codes of con- alty. The report recommends that the fundamental principle duct at law societies across the country, many hope that the expressed by the Supreme Court of Canada — the substantial CBA’s report and toolkit will go a long way towards helping risk principle — be applied and followed in determining whether corporate counsel address the issues surrounding conflicts. or not a lawyer has a conflicting interest, instead of the unrelated The report describes the problems faced by lawyers across the matter rule. country and outlines 21 recommendations on how to deal with “Our view is that the application of the principle is sufficient conflicts issues, such as the duty of loyalty, the duty of confiden- to protect the public from any adverse impact on representation tiality, and setting up screens. It also provides a toolkit with prac- that might be caused by a lawyer representing a client on an unre- tical checklists and precedents, and gives lawyers detailed infor- lated matter,” says Jolliffe. mation about how to manage ethical duties, avoid tactical con- Both courts and lawyers have come to confuse the duty of loy- flicts, and draft engagement letters. alty with the duty of confidentiality,but Jolliffe points out the two The task force’s recommendations were adopted at the CBA’s are quite different in their application and timing. The duty of Canadian Legal Conference in Quebec City this past August,and loyalty to a client ends on termination of the retainer or the work is now underway to draft provisions and amendments to engagement; the duty of confidentiality survives the retainer or incorporate the recommendations into the CBA’s Code of engagement, and a lawyer is bound to maintain in confidence Conduct.The Federation of Law Societies is also looking at the confidential information that has been passed to him or her dur- PAUL EEKHOFF report as it develops its model code of conduct for law societies. ing the course of that retainer. Scott Jolliffe, chair and CEO of Gowling Lafleur Henderson Another section of the report concerns engagement or retain- LLP inToronto,chaired the CBA’s task force.He says the conflicts er letters.The strong recommendation is that lawyers enter into a HIVER 2008 CCCA Canadian Corporate Counsel Association 29