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Conflicts issues
Fri, 2007-01-19 18:33 — Admin1
Introduction
Before submitting content to Legaltree, users should consider whether the contents of their article may conflict with the interests of anyone they are associated with. For example, if a lawyer contributes an article that strongly advocating a particular position, that view may, unbeknownst to the lawyer, be contrary to the interests of a client of the firm; and that client may object to publication of the article while his or her case is ongoing. This risk is increased for larger law firms.
In R v. Neil, 2002 SCC 70 at para. 18, [2002] 3 S.C.R. 631 the Supreme Court of Canada adopted the following words from Drabinsky v. KPMG (1998), 41 O.R. (3d) 565 at 567 (Gen. Div):
I am of the view that the fiduciary relationship between the client and the professional advisor, either a lawyer or an accountant, imposes duties on the fiduciary beyond the duty not to disclose confidential information. It includes a duty of loyalty and good faith and a duty not to act against the interests of the client.
Without discussing the meaning of “act against the interest of the client” in detail, publishing material that strongly advocates against a position being taken by a client will be inappropriate in some cases.
This risk can be managed and mitigated in the following ways.
Don’t write partisan articles
The more neutral and balanced an article is, the less likely it is to be contrary to the interests of any particular party. Furthermore, objective articles that summarize and explain that law are far more useful to researches than partisan ones that discuss what the law should be, rather than what it actually is.
Become an author of a book
When writing an article on a narrow point of law there is a greater tendency to argue a particular perspective than there is when writing a general summary covering a larger area of law. Therefore, books are less likely than articles to be partisan and contrary to the interests of an associated party. Furthermore, while an article may unknowingly be published at an inopportune time, books are ongoing works and so time of publication will not be an aggravating factor. It is one thing to generally and permanently hold a view that is arguably contrary to an associated party’s interest, and quite another to be seen as expressing that view for the first time at a critical moment.
Have the article approved before you publish it
Lawyers should check their firm policy on publications, and have all articles approved before uploading onto Legaltree. Having the appropriate person screen the article, and possibly circulate an email checking for conflicts, may be sufficient to address conflicts concerns.
Publish the work anonymously until the conflict has dissipated
Users can publish their work anonymously in the following ways:
- Email the content to Legaltree and request that it be published as “Anonymous”. This can be done on an article by article basis, with other articles remaining attributed to the user. When the conflict has dissipated, the user can request that the anonymously published article be attributed to them.
- Select a user name that conceals the user’s identity and don’t enter any personal information. Using this method, all articles submitted under that user name will always conceal the user’s identity.
Conclusion
This page does not provide advice to contributors - under the Terms of Use, users are completely and solely responsible for the content they publish – it merely alerts contributors to one of the issues they should consider before contributing content.
