Is there a disqualifying conflict of interest between a lawyer and client?

British Columbia, Canada


The following excerpt is from R. v. Gourley, 1999 CanLII 2609 (BC SC):

In MacDonald Estate v. Martin (1991), 1990 CanLII 32 (SCC), 77 D.L.R. (4th) 249 (S.C.C.), Mr. Justice Sopinka, speaking for the majority, stated: [T]he test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to but is objecting to the retainer which gives rise to the alleged conflict. Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor-and-client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? [My emphasis.]

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