checklist to identify conflicts involving multiple interests

Many situations involving multiple representation involve interests which are either divergent from the get go or will become so very early on in the matter. Whether or not the proceeding or matter is contentious, the fact that the interests are divergent means that you will not be able to align your loyalty and judgment in favour of each of the interests as is required of you. The reality is that it may be difficult to show that each client received the best possible advice that he or she would have received if the lawyer was acting for one party alone and did not have any responsibility to the client with the opposing interest. In the end, one or both of the clients may complain.

Therefore, you should not act! If in doubt, consult with a colleague, your firm management, outside counsel, or the Law Society's Practice Advisory Service at (416) 947-3369 or 1-800-668-7380.

Questions to help identify a multiple interest conflict

	What are all of the interests that must be considered during the representation?
	Is there anyone else who has anything to do with the subject matter of the representation? If so, what is their interest?
	Is more than one person relying on your advice? If so, for what advice?
	If someone attends with a relative or friend, does that relative or friend believe that you are representing his/her interests as well?
	Is someone other than the person affected by the subject matter of the representation paying for your fees?
	Where people are contributing to create a business, are their contributions different? Are their rights and obligations different?
	Where people have a common interest, are their bargaining positions unequal?
	To maximize the interest of one of the persons involved, will the interests of another person be compromised or negatively affected?
	Will you have to keep secret any information from one of the participants that is material to your representation in the matter?
	Is there real potential for the parties to have a falling out in the future?

Examples of multiple interest situations to avoid at all costs

INTERESTS BETWEEN SPOUSES REGARDING

	family law matters e.g. marriage contracts, separation agreements, divorce, custody, property disputes, assets and obligations
	financial obligations e.g. loan or line of credit guarantees, mortgage for other than a joint benefit
	wills and estate planning matters e.g. imbalance in asset holdings or both are very wealthy or previous marriage and family relationships.

INTERESTS AMONG FAMILY MEMBERS REGARDING

	financial obligations e.g. loans, guarantees, security interests
	motor vehicle accidents e.g. involving a combination of negligent driver, owner and passenger
	estate and administrator
	guardian and ward
	trustee and beneficiary
	shareholders of a closely held company
	partners in a partnership.

COMMERCIAL INTERESTS REGARDING

	trustee and beneficiary
	landlord and tenant
	general partner and limited partner
	bond issuer and underwriter
	debtor and creditor e.g. mortgagor/mortgagee; assignor/assignee
	buyer and seller
	parties attempting to collect from one fund
	shareholders of a closely held corporation
	partners in a partnership
	the partnership and one or more partners
	corporation and one or more individuals with an interest in the corporation
	individuals involved in a joint venture
	client and a competitor
	corporate legal counsel and as an officer and director of same company.

Last update: Oct. 7, 2002