reputation of administration of justice – bad” courts have discretion, need to look at all factors “looks – May be required to send msg that disloyal conduct is not condoned by courts Consider: Behavior disentitling the complaining party from seeking the removal of counsel Significant prejudice to new client’s int in retaining counsel of choice Party’s ability to retain new counsel Fact that law firm accepted the conflicting retainer in gd faith Reasonably believing concurrent rep fell beyond scope of bright line Personal Relationship Issue whether you can provide effective presentation – can you give dispassionate advice? Emotion could cloud judgment lack objectivity – A judgment to decide whether you have ability to meet the duty owed to clients – Sexual relationship Duty to provide objective, disinterested advice to client Impact of relationship Hunter Lawyer Interfere with lawyer’s fiduciary obligation to client Ability to exercise independent professional judgment Ability to fulfill obligation as officer of n admin of justice Impact on ability to provide the advice objectively n independently Difficult to remain dispassionate Client Inhibit client from challenging / questioning the advice Exploitation of clients’ vulnerability power imbalance – Similar to therapist patient relationship – Approach – discuss with client @ outset of relationship whether to continue to act on their behalf – @minimum reflect to danger associated w/ the conflict of int – Suggest independent legal advice not required – if client is unsophisticated/ vulnerable - should recommend to ensure client’s consent is informed, genuine and uncoerced Any uncertainty resolved in favour of such recommendation – In some circumstance conflict may be so profound so simply cannot continue to act – Problems with Hunter penalty ‘s Light penalty Lots of disagreement abt appropriateness of penalty Relevant to consider hunter’s emotional toll? Since such a prominent lawyer shouldn’t there be more severe punishment? – Image of law society? CNR v McKercher SCC Conflict of Int – Fact CNR retained McK to act for them in 3 diff issues McK obtained by Wallace for class action against CNR – Decide to take on the case So terminated 2 of the 3 retainer agreement with CNR w/out their consent CNR - went to court to request termination of McK’s rep @trial McK ought to be disqualified – @CA overturned – Analysis Case at bar Bright line rule - Immediate int directly adverse n legal disputes –
reputation of administration of justice – “looks bad” – courts have discretion, need to look at all factors May be required to send msg that disloyal conduct is not condoned by courts Consider: Behavior disentitling the complaining party from seeking the removal of counsel Significant prejudice to new client’s int in retaining counsel of choice Party’s ability to retain new counsel Fact that law firm accepted the conflicting retainer in gd faith Reasonably believing concurrent rep fell beyond scope of bright line Personal Relationship Issue – whether you can provide effective presentation can you give dispassionate advice? Emotion – could cloud judgment lack objectivity A judgment to decide – whether you have ability to meet the duty owed to clients Sexual relationship Duty to provide objective, disinterested advice to client Impact of relationship Hunter Lawyer Interfere with lawyer’s fiduciary obligation to client Ability to exercise independent professional judgment Ability to fulfill obligation as officer of n admin of justice Impact on ability to provide the advice objectively n independently Difficult to remain dispassionate Client Inhibit client from challenging / questioning the advice Exploitation of clients’ vulnerability – power imbalance Similar to therapist – patient relationship Approach – discuss with client @ outset of relationship – whether to continue to act on their behalf @minimum – reflect to danger associated w/ the conflict of int Suggest independent legal advice – not required if client is unsophisticated/ vulnerable - should recommend to ensure client’s consent is informed, genuine and uncoerced Any uncertainty – resolved in favour of such recommendation In some circumstance – conflict may be so profound so simply cannot continue to act Problems with Hunter ‘s penalty Light penalty Lots of disagreement abt appropriateness of penalty Relevant to consider hunter’s emotional toll? Since such a prominent lawyer – shouldn’t there be more severe punishment? Image of law society? CNR v McKercher – SCC Conflict of Int Fact CNR retained McK to act for them in 3 diff issues McK – obtained by Wallace for class action against CNR Decide to take on the case So terminated 2 of the 3 retainer agreement with CNR w/out their consent CNR - went to court to request termination of McK’s rep @trial – McK ought to be disqualified @CA – overturned Analysis Case at bar Bright line rule - Immediate int – directly adverse n legal disputes
Benedet_Law_468_-_Ethics_&_Professionalism_Winter_2013_Jennifer_Tseng.docx