When a lawyer is acting in a real property transaction, the lawyer must consider the issue of whether there is a conflict of interest, or a potential conflict of interest between any party being represented by the lawyer (or any other lawyer in their firm), and any other party to the transaction.1
When a lawyer is acting in a real property transaction, where a party is not represented by counsel, a lawyer should:
- advise an unrepresented party that their interests are not being protected by the lawyer;
- advise the unrepresented party which party the lawyer is representing in the transaction;2
- recommend independent legal advice to the unrepresented party.
When a lawyer (or their firm) is acting in a real property transaction for more than one party, the lawyer must advise each client in writing 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.3
When a lawyer is acting in a mortgage transaction, the lawyer must consider the provisions in the Nova Scotia Barristers’ Society, Code of Professional Conduct, relating to acting for lender and borrower.4
1 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rule 3-4.1;
2 This applies in particular if the unrepresented party might reasonably feel entitled to look to the lawyer for guidance and advice in respect of a transaction.
4 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rules 3-4.12 through 15 inclusive.
- Duty on the lawyer to advise unrepresented party that their interests are not being protected: Hants County Business Development Centre Ltd. v. Poole et al. (1998), 172 N.S.R. (2d) 393 (N.S.C.A.), affirming (1997), 165 N.S.R. (2d) 393 per Kelly J.; Klingspon v. Ramsay, 1985 CanLII 548 (BC SC);
- Kwak v. Odishaw (1984), 59 B.C.L.R. 54 per Seaton J.A. (B.C.C.A.)
- R.v. Neil, 2002 SCC 70
- Strother v. 3464920 Canada Inc., 2007 SCC 24,  2 SCR 177
- Canadian National Railway Co. v. McKercher LLP., 2013 SCC 39
- Reliance of unrepresented party on the lawyer may result in a duty of care: Tracy v. Atkins (1979), 83 D.L.R. (3rd) 46 (BCSC.), aff’d 105 D.L.R. (3rd) 632 (C.A.); Elliott v. Hossack, 1999 CanLII 6001 (BCSC); Paton v. Shaw, 1995 CanLII 2859 (PEISCTD)
- Bank of Nova Scotia v. Halef, 2003 NSCA 70 (CanLII)
- Rice v. Condran, 2012 NSSC 95 (CanLII)
- Real Property Standard 1.5: Documentation of Advice and Instruction
- Real Property Standard 4.5: Limited Scope Retainers
- Model ‘Conflicts of Interest’ Checklist, Law Society of British Columbia
- CBA Task Force Conflicts of Interest: Final Report, Recommendations and Toolkit – 2008
- Nova Scotia Barristers’ Society, Code of Professional Conduct (particularly Chapters 3 and 4)
- Sample Joint Retainer Consent – Real Estate Transaction (for Multiple Buyers)
- Sample Waiver of Conflict of Interest
Conflicts in transactions can be difficult to identify in certain transactions. A lawyer should use his or her professional judgment in each case.
In a real estate transaction it is the best practice for each side of the transaction (i.e. seller and buyer) to be represented by a separate law firm and not simply another lawyer in the same firm. Concurrent representation may be permitted in certain circumstances. Review rule 3-4.4 of the Code of Professional Conduct before acting. If acting for both sides, each side must be advised of the potential conflict and the consequences of a conflict in writing and the lawyer must document as per Standard 1.5 the client’s written waiver.
Where there is more than one client (such as with spouses/partners, parent/child) the matter will usually require a written joint retainer agreement. See sample above and in Practice Tools section of these Standards.
A lawyer should use professional judgment to determine if two parties in a transaction (such as two or more buyers or sellers)may have a potential conflict issue. If the contributions of the parties or relative power of the parties are unequal, this may be an issue. A lawyer should not assume there is no conflict when representing two or more members of one family in a property transaction.
A lawyer representing a buyer and mortgagee in the same transaction should assess whether a conflict may exist. The lender will often require written waiver of conflict of interest. If not requested, the lawyer should not ignore whether obtaining a written waiver of conflict of interest is the best practice. In large value transactions, often the lender retains their own counsel for this reason.
In the event of a joint retainer, it is recommended that the joint retainer letter be sent to the client early on in the retainer and not wait to bring up the issue on closing. This ensures proper communication with the client. It is also important to ensure that communication with only one of the clients is considered to be communication with all of the clients. This can be accomplished using the sample precedent for joint retainer found above and in the Practice Tools section.
Other samples for conflict precedents may be found with the CBA Conflicts Toolkit noted above.
When dealing with an unrepresented party: In the agreement or instrument you are preparing for your own client, it may be good practice to include a clause expressly stating that you prepared the agreement or instrument as a lawyer representing only [your client] and that [unrepresented party] should consult with its/her/his own lawyer regarding the agreement or instrument before signing/accepting.
Amended by Council on February 26, 2016