The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest.  Background on the Task Force and their report can be found on the CBA website.

CBA President Bernard Amyot said,

Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.

Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.

Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.

Tracey Tyler of The Star explains,

The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.

The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,

34 When a lawyer is retained by a client, the scope of the retainer is governed by contract.  It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement.  The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law.  The Davis factum puts it well:

The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]

Not every breach of the contract of retainer is a breach of a fiduciary duty.  On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for.  The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265.  “[I]t is of high public importance that public confidence in that integrity be maintained”:  R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.

35 Fiduciary responsibilities include the duty of loyalty, of which an element is  the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia.  As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”:  Ethics and Canadian Criminal Law (2001), at p. 287.

The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.