by Robert Brun, QC

At the August meeting of the CBA National Council, the Task Force on Conflicts of Interest presented its Report after almost two years of work. The Report was submitted to Council by the Task Force Chair, Mr. Scott Jolliffe, of Gowlings. Mr. Jolliffe advised Council that nothing in the Task Force Report waivers from the commitment to the immutable principles which necessarily guide lawyers in their work:

• Lawyers must never permit their own interests or their duties to others to compromise their representation of a client;
• Lawyers must provide zealous representation;
• Lawyers must protect client confidences.

Mr. Jolliffe emphasized that clients are entitled to expect that their lawyers will act with integrity and will provide them with solid legal advice.

The Task Force mandate was to propose guidelines for the profession in dealing with conflict issues. The mandate was not to attempt to overturn Supreme Court of Canada decisions or to re-write the law. The Task Force recognized that it was up to the regulatory bodies to set professional standards for the profession and to enforce those standards through their disciplinary function. Ultimately as it is up to the Courts to accept or to reject the regulatory standards set by the Law Societies.

The final Report contains 21 recommendations that were developed after extensive consultation with CBA Members. The Task Force canvassed the views of lawyers from varied type of practices, in every size of firm and in every region of the country.

Ultimately the Report has five main parts:

1. In the Executive Summary you will find a brief explanation of the context of the Task Force’s work and its recommendations. It also contains a synopsis of the recommendations and how to apply them when analyzing a potential conflict of interest.
2. The Introduction briefly describes the content of each chapter.
3. The Recommendations are set out at pages 8 and 9 of the Report.
4. Legal Analysis and Discussion forms the core of the Report from pages 11 to 150.
5. The Appendices from pages 151 to 182 have lists of cases cited and other sources. From page 183 onwards, the Report contains what has come to be known as “The Tool Kit.”

The Report of the Task Force was presented to Council for adoption on August 16, 2008 and ultimately received the overwhelming endorsement of Council.

The work is not yet over. The next phase for the Task Force will involve input on the task of amending the CBA Professional Code of Conduct as recommended in the Task Force Report. Additionally, it is our hope that the Task Force will be able to work with the Federation of Law Societies so that our recommendations can find their way into the national model Code of Conduct currently being developed by the Federation.

The Task Force Report can be viewed on the CBA National website and I urge all members to access and read the Report. I ask members to consider the Report and Tool Kit to ensure that in their day to day dealings with clients that they continue to recognize and respect the fundamental principles articulated in the Report that must guide lawyers in all of their work.

Robert Brun, QC, of Harris & Brun, is a past President of the CBABC, a Bencher for Vancouver and a member of the Conflicts of Interest Task Force.

This article was published in the October 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.