Accepting a mandate without checking conflicts of interest means betting the firm's reputation on an incomplete search. The Code of ethics is clear: acting with a conflict is prohibited — not merely discouraged.
The Code of ethics of advocates prohibits acting when a conflict of interest exists between the duty to the client and a personal interest, or between duties to two clients. Verification continues throughout the mandate.
Before accepting a mandate
- Search active and recently closed files.
- Check adverse parties, witnesses and related entities.
- Consult involved associates and employees.
- Written documentation of the search and conclusion.
Undocumented research is research that did not happen — in an inspector's eyes.
During the mandate
A conflict may arise mid-matter: new client, merger, acquisition, change in a party's status. The firm must have a process to detect these situations and act — refusal, withdrawal or informed consent as appropriate.
« Conflict checks are not a one-time step — they must be maintained throughout the mandate. »
Conflicts and trust accounts
The Regulation respecting accounting and trust accounts of lawyers prohibits mixing funds of clients in conflict in the same account without adequate separation. Conflict management therefore also touches trust accounting.
A poorly managed conflict may first show up in client accounts.
Tracking tools
A centralized register of clients, adverse parties and closed mandates reduces the risk of accepting an incompatible mandate. Register effectiveness depends on updates — a tool abandoned after file opening protects no one.
The best register is the one the firm uses for every new mandate — not the one it purchased.