Solicitor’s Conflicts of Interest in an Estates Practice
On Day One of the13th Annual Estates and Trusts Summit, Ms. Hilary Laidlaw delivered an excellent presentation on solicitor’s conflicts of interest in an estates practice.
The lawyer and client relationship is, prima facie, a fiduciary one. As a fiduciary, the lawyer owes her client the duty of loyalty which demands that a lawyer never place herself in a position where her personal interests or the interests of another conflict, or may reasonably be seen to conflict, with the interest of her client. As Ms. Laidlaw explained, the notion of conflicts of interest, “cuts right to the heart of the legal profession”.
Ms. Laidlaw pointed out that estate lawyers practice in an environment that is “ripe for conflicts” as they often represent couples, families and multiple clients at once. In these circumstances, there is the possibility that while the clients may begin the retainer with their interests aligned, as time passes, their interests diverge and the lawyer finds herself in a conflict of interest position where she cannot provide advice to one client that is not adverse to the interests of the other. Rule 2 and its commentary in the Rules of Professional Conduct http://www.lsuc.on.ca/media/rpc_2.pdf, provide guidance to lawyers entering and exiting these awkward situations.
Estate lawyers are often providing advice to clients who are themselves in a fiduciary relationship. For example, a solicitor for an estate trustee provides legal advice to the estate trustee who in turn has a fiduciary obligation to act solely in the best interest of the beneficiaries of the estate. Ms. Laidlaw highlighted the possibility of a conflict arising for a lawyer where an estate trustee, in pursuit of her own personal interest, seeks excessive compensation and the lawyer struggles to advise her client of her right to compensation but also of the client’s duty to act in the best interests of the beneficiaries of the estate.
Finally, Ms. Laidlaw not only directed us to Supreme Court of Canada jurisprudence and the Rules of Professional Conduct for guidance, but referred us to the Canadian Bar Association Task Force on Conflict of Interest Toolkit. http://www.cba.org/CBA/groups/conflicts/toolkit.aspx
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