{"id":66,"date":"2017-09-04T15:31:37","date_gmt":"2017-09-04T19:31:37","guid":{"rendered":"http:\/\/canlawblog.com\/?p=66"},"modified":"2017-09-04T15:31:37","modified_gmt":"2017-09-04T19:31:37","slug":"conflict-of-interest","status":"publish","type":"post","link":"https:\/\/canlawblog.com\/index.php\/2017\/09\/04\/conflict-of-interest\/","title":{"rendered":"Conflict of Interest and Independent Legal Advice"},"content":{"rendered":"

What is a Conflict of Interest?<\/h2>\n

Conflict of Interest arises when our interest conflicts with another\u2019s to whom we owe a duty. Two basic types of conflict of interest are:<\/p>\n

    \n
  1. A person may have a\u00a0conflict\u00a0of interest when representing two parties who have conflicting interests with each other.<\/li>\n
  2. If a person in a position of trust a competing personal or professional interest, they should recuse themselves, as they will also have a conflict of interest.<\/li>\n<\/ol>\n

    Rule 3.4 of the Rules of Professional Conduct of the Law Society of Upper Canada of Ontario<\/a> states:<\/p>\n

    \u201c3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.\u201d<\/p>\n

    Common law jurisdictions, such as Ontario, use the adversarial legal problem-solving method, you need strict rules of confidentiality and solicitor and client privilege so that the lawyer and the client can talk openly between each other and the lawyer and decide on the best course of action to protect his or her client. The opposing party does the same and when the two cannot agree they take it to court for the Judgement of the court which evaluates the law and facts of each side and reaches a decision.<\/p>\n

    \"Conflict<\/p>\n

    This adversarial approach often creates acrimony between the disputing parties, especially when one lawyer tries to overreach and obtain a result for their client that a court would not ordinarily grant. Since overreaching is common, there is a need for civility in and out of the court room to ensure that the conflict is resolved with proper procedural rules. In some other jurisdictions, such as the US Federal Court system, Judges may sanction lawyers<\/a> for overreaching by presenting to the court a pleading, written motion, or otherwise:<\/p>\n

    (1) Presenting something for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;<\/p>\n

    (2) Making unwarranted claims, defenses, and other legal contentions or by making a frivolous argument to extend, modify or reverse existing law or for establishing new law;<\/p>\n

    (3) Making factual contentions that have no evidentiary support or unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or<\/p>\n

    (4) Making unwarranted factual contentions on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.<\/p>\n

    However, the adversarial system is better than the alternative: having a lawyer that you can’t trust to have your best interests in mind. Not everything is black and white and sometimes there are valid arguments to\u00a0extend, modify or reverse existing law or for establishing new law. How could one person effectively argue for two competing clients? It is hard enough for a judge to remain impartial when parties are unrepresented.<\/p>\n

    Examples of a Conflict of Interest for Lawyers:<\/h2>\n