By Melanie Hodges Neufeld
…that there are a number of specific and mandatory requirements that lawyers must meet when entering into a Joint Retainer with two or more clients? The Code of Professional Conduct requires that “before a lawyer acts in a matter or transaction for more than one client, the lawyer must advise each of the clients that:
(a) the lawyer has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.” [s. 2.04(5)]
This applies even to situations such as two spouses who come in to get mirror Wills. [s. 2.04(5)] After so advising clients in a joint retainer, the lawyer must obtain all clients’ consents, in writing, to the joint retainer, pursuant to the above terms. The consent can either be explicit and signed by the clients, or can take the form of a follow-up letter from the lawyer, detailing that the informed consents were received verbally. [s. 2.04(7)]
A lawyer may also want to consider whether one of the parties in a joint retainer is less sophisticated or more vulnerable than the other, to the point that they should advise the client to obtain independent legal advice before consenting to the joint retainer. [s. 2.04 (5)]
This tip first appeared in Volume 27, Issue 2 of the Benchers’ Digest (January 2014). All issues of the Benchers’ Digest back to 1997 are available on the Law Society website. A searchable Professional Conduct Rulings Database is also available. Please check out both for more guidance.