Editor’s Desk - The conflicts of our time

Conflicts are a messy business, on every level these days, it seems. While conflict of interest rules underpin the justice system and are at the heart of the practice of law, no one ever dreamed that complying with them would become so onerous and so costly. And it’s not just a big-firm problem. Conflict-related concerns affect law firms of all sizes in a wide range of practice areas. They also no longer occupy the periphery of practice with a growing number of firms assigning a partner or entire groups of lawyers to manage — or is that avoid — conflicts for clients and the firm.

Following conflict rules, which includes their interpretation through a number of Supreme Court of Canada decisions, is absolutely imperative, as an error could lead to damaged client relationships, increased costs, delays, further lawsuits, and even disciplinary action against practitioners. The problem is not that lawyers have to abide by conflict rules, it’s that the rules, and again their interpretation, are complex and are imposing a substantial burden on lawyers, firms, the courts, and even clients.

For a few years, the increasing complexity, cost, and effort required to comply with conflict of interest rules have weighed heavily on law firm manager’s minds. In March 2007, the Canadian Bar Association created a task force to examine the issue and develop a set of model rules and materials to make the process of managing conflicts easier and practical.

The task force is led by Scott Jolliffe, the managing partner of Gowlings, who has been on the forefront of the issue for years. He’s joined on the panel by 14 lawyers who represent law firms across the country, in-house counsel, law societies, and legal insurers — all of whom have varying but interwoven interests in making the application of the principles of conflict of interest more effective. While the task force can’t create enforceable rules, its aim is to develop a set of widely accepted model rules that law societies will incorporate into their rules of professional conduct.

For the first six months, the task force worked together to identify the most prominent areas of concerns and in October released its consultation and background papers. They’re online at www.cba.org/conflicts. The consultation paper has 15 questions that address loyalty requirements and their interpretation, information-sharing within firms, retainer letters, and the problematic challenges posed by current conflict rules.

As already stated, conflict rules don’t just apply to top-tier firms. Mid-size firms, lawyers in smaller communities, and their clients are all affected by the rules. They also affect lawyers’ abilities to move between firms, not to mention firms that have multiple offices that operate in several jurisdictions.

There aren’t likely to be many lawyers who are not touched one way or another by aspects of today’s complex web of conflict rules, which makes it so much more important for every lawyer and every level of practice in this country to take part in the task force’s consultations. The task force is in the throes of its consultation period. The deadline for sending comments is Nov. 29 and Canadian Lawyer encourages all Canadian lawyers to participate by visiting the task force’s web site to read the consultation paper and complete the questionnaire. More than any other issue facing the profession, the miasma of conflict rules and interpretations needs clarity in order to be effective and protect lawyers and clients. Make your voice heard.

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