legal ethics handbook - Nova Scotia Barristers' Society

LEGAL ETHICS HANDBOOK
Common "multiple client'' situations where there is real danger of divergence of interest arising between clients
include the defending of co-accused, the representation of co-plaintiffs in tort cases or of insureds and their
insurers, the representation of classes or groups such as beneficiaries under a will or trust and construction lien
and bankruptcy claimants. See for examples, Orkin, supra, note 1, at 100.
[Leave to appeal granted] " ... by reason of the same solicitor appearing for Robert and DePatie, and it being
apparent that there was a conflict of interest between Robert and DePatie, each one blaming the other for the
injuries of the children, he should not have acted for Mrs. DePatie after having acted for Robert.'' R. v. DePatie,
[1971] 1 O.R. 698 at 699, 2 C.C.C. (2d) 339 at 340, per Gale C.J.O. (C.A.).
6. For codes of ethics dealing with this, see ABA-MR 2.2.
7. For a code of ethics dealing with this, see Lund, D8.
"The solicitor acting for the defendant ... drew the mortgage and advised the said defendant on the effect thereof.
Later the same solicitor acting for the mortgagee bank brought action against his former client based on a claim
arising out of and related to that mortgage. Solicitors should not so conduct themselves even with the knowledge
and consent of all parties.'' La Banque Provinciale v. Adjutor Levesque Roofing (1968), 68 D.L.R. (2d) 340 at 345,
per Limerick J.A. (N.B.C.A.).
"The appellant for many years had been the respondent's solicitor, and a quarrel ... brought about a rupture .... It
was then ... that the appellant by his letters to the wife incited her and improperly encouraged her to prosecute an
action ... thus stirring up a litigation against the respondent.'' Sheppard v. Frind, [1941] S.C.R. 531 at 535, [1941]
4 D.L.R. 497 at 500, per Taschereau J.
"[Quoting from Bowstead on Agency] 'It is the duty of a solicitor ... not to act for the opponent of his client, or of a
former client, in any case in which his knowledge of the affairs of such client or former client will give him an
undue advantage. An injunction will be granted to restrain a solicitor from communicating to the opponent of a
former client confidential communications made to him, or documents or facts coming to his knowledge, as the
solicitor of the former client; and when there is a chance of his using any such communications or knowledge to
the detriment of the former client, from acting as solicitor for the opponent. In the application of this principle it is
quite immaterial whether the solicitor was discharged by his former client, or ceased to act for him voluntarily....'
This is a principle of ethical standards that admits of no fine distinctions but should be applied in its broadest
sense, and it makes no difference whether the solicitor was first acting for two parties jointly who subsequently
disagreed and became involved in litigation over the subject-matter of his joint retainer, or acted for one party with
respect to a matter and took up a case for another party against his former client about the same matter." Sinclair
v. Ridout, [1965] O.R. 167 (H.C.), per McRuer C.J.H.C.
Decisions in several recent cases have focused upon the appearance of professional impropriety created in
situations in which a solicitor acting against a former client might have received confidential information from that
former client: Canada Southern Railway Co. v. Kingsmill, Jennings (1978), 8 C.P.C. 117, 4 B.L.R. 257 (Ont. H.C.);
Szebelledy v. Constitution Ins. Co. of Canada (1985), 11 C.C.L.I. 140 (Ont. Dist. Ct.); Fisher v. Fisher (1986), 73
N.S.R. (2d) 181 (T.D.); revd (1986), 76 N.S.R. (2d) 326. But see Aldrich v. Struk (1986), 26 D.L.R. (4th) 352, 1
B.C.L.R. (2d) 71, [1986] 3 W.W.R. 341 (S.C.). See also G.(D.L.) v. Wood (1995), 125 D.L.R. (4th) 712 (N.S.C.A.);
Bay Roberts Shopping Centre Ltd. v. Dalfen's Ltd. (1989), 78 Nfld. & P.E.I.R. 128 (Nfld. T.D.); Barry v. Law
Society (New Brunswick) (1989), 100 N.B.R. (2d) 245 (Q.B.) ["...a party's right to counsel of their choice is an
important right which would only be set aside if there was a clear indication that there would be prejudice to
another party by their continuing."]; Farm-Rite Equipment Ltd. (Receiver of) v. Robinson Alamo Sales Ltd. (1989),
78 Sask. R. 161 (C.A.); Brar v. Brar, [1990] 3 W.W.R. 495 (Sask. Q.B.); Princess Auto & Machinery Ltd. v.
Winnipeg (City) (1991), 73 Man. R. (2d) 311 (C.A.); McCallum v. McCallum Estate (1981), 47 N.S.R. (2d) 530; G.
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