1. Determine who your clients are.
2. Determine whether the joint retainer rule applies.
If you are being asked to act for more than one client in a matter or transaction, you must comply with the joint retainer rule.
3. Before you accept a retainer to act for more than one client in a matter or transaction, determine whether you are permitted to accept the retainer
pursuant to the Rules of Professional Conduct.
Section 3.4 of the
Rules of Professional Conduct deals with conflicts of interest and joint retainers. For example, rules 3.4-12 to 3.4-16 prohibit a lawyer or two or more lawyers practising in partnership or association from acting or
otherwise representing both the lender and the borrower in a mortgage or loan transaction except in certain circumstances. Rules 3.4-16.7 to 3.4-16.9
prohibit an individual lawyer from acting for or otherwise representing both the transferor and the transferee in a transfer of title to real property
except in certain circumstances.
4. If you determine that you can accept the joint retainer, then consider whether it would be prudent in the circumstances of the matter or transaction
to take on the joint retainer.
For example, you should not accept a joint retainer if
- the circumstances are such that it is likely that an issue contentious between the clients will arise or their interests, rights or obligations
will diverge as the matter progresses; or
the interests of the parties are not sufficiently similar to allow you to act in the best interests of all of the parties to the joint retainer.
You should consider whether rule 3.4-2 (Consent) applies to prohibit acting even with consent.
5. If you determine that you will accept the joint retainer, then prior to accepting the retainer, advise each client that
- you have 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, you cannot continue to act for both or all of them and you may have to withdraw completely.
6. If you have a continuing relationship with any of the clients for whom you act regularly, then prior to accepting the joint retainer,
advise the other client or clients of the continuing relationship and recommend that they obtain independent legal advice prior to the joint retainer.
7. If the clients are agreeable to the joint retainer, then prior to accepting the joint retainer, 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.
To ensure that the client’s consent is informed, you should recommend that the client obtain independent legal advice on the joint retainer in some
cases. For example, you should recommend independent legal advice if one of the clients is more vulnerable or less sophisticated than the other or
8. Where the clients have consented to a joint retainer and a contentious issue between them or some of them arises, refrain from
advising any of them on the contentious issue unless the clients have previously agreed that you may continue to advise one of them about the
Where there is such an agreement, you may continue to advise the one client about the contentious matter and refer the other client or clients to
Where there is no such agreement, you must refer the clients to other lawyers to advise them on the contentious issue, unless no legal advice is
required and the clients are sophisticated, in which case, the clients may settle the contentious issue by direct negotiation and without your
9. If the contentious issue is not resolved, then withdraw from the joint representation.
[i] A lawyer is not required to comply with this requirement with respect to an institutional lender client in the circumstances outlined in rule
[ii] Similarly, a lawyer is not required to comply with this requirement with respect to an institutional lender client in the circumstances outlined in