New Conflict of Interest Rules in Force December 1
The Benchers adopted new conflict of interest rules at their September 2012 meetings. Since the autumn, rules 2.04 (1) to (13) have been available for review on the Law Society’s website. On December 1, 2012, these rules come into effect and become part of Alberta’s Code of Conduct.
These rules are generally consistent with the principles articulated in the Model Code of Professional Conduct of the Federation of Law Societies of Canada. Consistent ethical standards enhance the national mobility of lawyers. These rules and commentary provide clear, meaningful guidance to lawyers, consistent with accepted Alberta standards of practice and ethics and with guiding principles articulated by the judiciary.
So, what’s new? And what’s not? The Code is organized and formatted in a way that reflects the Model Code template, implemented with a view to achieving uniform standards across the country. In addition, an effort was made to employ plain language so that the Code would be more accessible to the general public.
The definition of “conflict of interest” has been amended to align it with the case law and other Codes. These rules address the types of conflicts that concern lawyers:
- Acting against current or former clients;
- Misusing confidential information, whatever its source; and
- Conflicts with a lawyer’s personal interests or other circumstances which compromise a lawyer’s personal judgment.
The rules respecting current client conflicts are unchanged, except for the format. The Bright Line principle set out by the Supreme Court in the case of R. v. Neil guides lawyers, and is explained in commentary. In short, lawyers should not act against their current clients, without informed consent, even if the two matters are unrelated. New clarity is added to the rules that deal with joint or multiple client representation. For example, commentary now exists to assist lawyers advising clients seeking joint wills.
Conflict rules for former clients contain no changes of substance. The focus remains on the risk of abusing confidential information of the former client. For lawyers moving between firms, the former Alberta rules are largely intact but now include a useful checklist for creating ethical screens or other information barriers. These measures continue to facilitate the protection of confidential client information and trust in the profession.
Conflicts personal to a lawyer receive similar treatment as before. These rules deal with personal relationships with the client or with opposing counsel, including doing business with the client. Changes are matters of formatting for national consistency or editing for clarity and conciseness.
Our pro bono rule is brought forward from the old Code. The model for delivering pro bono services varies from province to province. Without compromising the rules governing conflicts of interest, this rule gives guidance to lawyers who volunteer in recognized pro bono settings.
Barry Vogel QC, former Practice Advisor once wrote, “Read the Code! All of it!”. Now that the work of reviewing and implementing the new Code of Conduct is complete, these words resonate more than ever. Once your reading is done, please call the Practice Advisors with any concerns or suggestions for future study. We invite you to contact a Practice Advisor to arrange an information session for your office on the new Code.