Before accepting a retainer to act for more than one client in a matter or transaction, a lawyer must determine whether he or she is permitted to accept the retainer pursuant to the Rules of Professional Conduct (the "Rules") and, if so, what steps are required to ensure compliance with his or her professional obligations.
Section 3.4 of the Rules deals with conflicts of interest and joint retainers. Several of the rules in this section outline scenarios in which individual lawyers or lawyers practicing in partnership or association are prohibited from representing more than one party and/or entering into joint retainers. These scenarios include:
- a lawyer representing opposing parties in a dispute (rule 3.4-3);
- a lawyer or two or more lawyers practising in partnership or association acting or otherwise representing both the lender and the borrower in a mortgage or loan transaction, except in certain circumstances (rules 3.4-12 to 3.4-16); and
- an individual lawyer acting for or otherwise representing both the transferor and the transferee in a transfer of title to real property, except in certain circumstances (rules 3.4-16.7 to 3.4-16.9).
In situations in which a lawyer is not expressly prohibited from representing more than one client in a matter or transaction under the Rules, the lawyer should consider whether it would be prudent in the circumstances of the matter or transaction to take on the joint retainer. For example, a lawyer should not accept a joint retainer if
- it is likely that a contentious issue will arise between the clients or their interests, rights, or obligations will diverge as the matter progresses; or
- the interests of the parties are not sufficiently similar to allow the lawyer to act in the best interests of all of the parties to the joint retainer.
The lawyer should also consider whether rule 3.4-2 prohibits the lawyer from acting even with consent.
If the lawyer decides to accept the joint retainer, then prior to accepting the retainer, the lawyer must advise each client that
- the lawyer has been asked to act for both or all of them;
- no information received in connection with the matter from one can be treated as confidential so far as any of the others are concerned; and
- if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely (rule 3.4-5).
Where a lawyer receives instructions from spouses or partners (as defined in the Substitutes Decisions Act) to prepare one or more wills for them based on their shared understanding of the contents of each will, the lawyer must treat the matter as a joint retainer and comply with rule 3.4-5. The lawyer should also advise the spouses or partners at the outset of the retainer about the consequences of one of them communicating new instructions to the lawyer in future as set out in rule 3.4-5.
In circumstances in which the lawyer has a continuing relationship with any of the clients for whom the lawyer acts regularly, then prior to accepting the joint retainer, the lawyer must also advise the other client or clients of the continuing relationship and recommend that the other client(s) obtain(s) independent legal advice about the joint retainer prior to the joint retainer (rule 3.4-6).
If the clients are agreeable to the joint retainer, then prior to accepting the joint retainer, the lawyer must obtain each client's informed consent by
- having the client execute a written consent; or
- obtaining the client's oral consent and sending a letter to the client confirming his or her consent (rules 1.1-1 and 3.4-7).
To ensure that the client's consent is informed, in some cases, the lawyer should recommend that the client obtain independent legal advice on the joint retainer. For example, the lawyer should recommend independent legal advice if one of the clients is more vulnerable or less sophisticated than the other or others (rule 3.4-5).
Steps for Dealing with the Joint Retainer Rules - Lawyers
Sample Joint Retainer Acknowledgment and Consent
Sample Joint Retainer Acknowledgment and Consent for Use in Real Estate Transactions
Law Society webcasting Convocation The Law Society will provide live online viewing of Convocation on April 23 as part of its commitment to continued transparency and accessibility. January and February Convocation meetings were also webcast and the archived versions are available for viewing from their respective pages on the Law Society's website. This series of webcasts will help to determine the level of the professions' interest in Convocation and the ongoing value of providing an up-close look at the way Convocation works and its consideration of policy issues. Check the April Convocation page a few days before Convocation for the link to the webcast.
Online voting in the Law Society's 2015 Bencher Election opens the week of April 13. All lawyer licensees whose licences are not suspended on April 7 are eligible to vote. The week of April 13, all eligible voters will receive voting instructions by email and a letter by regular mail from Computershare, the company the Law Society has engaged to conduct the online election. Voting closes at 5:00 pm EDT on April 30, 2015.
Watch for the Law Society's Voting Guide with information about the 96 candidates who are running for bencher, which will be posted on the Law Society's website prior to the opening of voting, and will also be available on Computershare's voting site. Remember to vote and use this opportunity to help decide who will provide leadership for the Law Society as members of Convocation.
Law Society Referral Service (LSRS) now offering immediate online referrals The LSRS continues to support access to justice by connecting people who have a legal need with a lawyer or paralegal who can assist them. Now exclusively online, the LSRS offers immediate referrals at any time of the day. Trained legal professionals continue to assist callers in need through a toll free crisis line. The cost to join the service is $282.50 per year (including tax), and applicants who join now will have their fee pro-rated monthly. Join now or renew your membership.
Become an active manager of your career. The Law Society, in partnership with over 55 law firms, has created an excellent resource to assist women lawyers and paralegals to advance in their careers. See the Justicia Project Career Advancement into Partnership - Associate Guide.
Parental Leave Assistance Program (PLAP) The Law Society's PLAP is in place to make it possible for more lawyers to maintain their practice after the birth or adoption of a child. The program provides financial benefits to practising lawyers who satisfy the eligibility criteria posted online.
Annual Reports available in LSUC Portal Lawyers and paralegals may access the 2014 Annual Report through the LSUC Portal. The annual report is due March 31, 2015. Licensees who fail to file their annual report by May 30, 2015, will be charged a $100 late fee and be subject to administrative suspension.
Going on leave? The Law Society's Career Coaching Program provides 6 hours of career coaching free of charge to practising women lawyers and paralegals in sole practice or firms of five lawyers/paralegals or fewer who take maternity, parental, adoption or compassionate leaves.
The amended Rules of Professional Conduct came into effect on October 1, 2014. Visit the Law Society's website for resources to assist with understanding and complying with the amended rules.
March 31 - 2014 Lawyer Annual Report due; 2014 Class L3 Licence Annual Report due.
April 23 - Convocation
April 30 - LAWPRO 2015 Real Estate and Civil Litigation Levy Surcharge annual exemption forms due.
April 30 - LAWPRO 2015 First Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.
April 30 - Bencher Election