Introduction
Joint retainers are common across many practice areas, including immigration law, where applications often involve more than one interested party. In Canadian immigration matters, lawyers may be asked to act for spouses, employers and employees, or family members pursuing a shared objective. While joint retainers can be efficient, they also raise ethical and professional responsibility concerns that require careful attention from the outset.
Joint Retainers in Immigration Matters
A frequent example arises in spousal sponsorship applications. Both spouses participate in the process, with one acting as the sponsor and the other as the applicant. If the relationship later breaks down, conflicting instructions may follow—one spouse may wish to proceed with the application, while the other may seek to withdraw. This situation places the lawyer at risk of acting in a conflict of interest if the scope of the retainer and the identity of the client were not clearly defined at the beginning.
The Supreme Court of Canada and the “Bright Line Rule”
The Supreme Court of Canada addressed concurrent representation in Strother v. 3464920 Canada Inc., where it articulated the “bright line rule.” The Court held that a lawyer must not concurrently represent clients whose immediate interests are directly adverse unless all affected clients provide informed consent after full disclosure, and the lawyer reasonably believes that the representation can proceed without adversely affecting either client.
The Court later clarified this principle in Canadian National Railway Co. v. McKercher LLP, emphasizing that conflicts may also arise in relation to former clients and third parties. Where the bright line rule does not apply, the question becomes whether there is a substantial risk that the lawyer’s representation of a client would be materially and adversely affected by duties owed to another client, a former client, or a third person.
Identifying the Client at the Outset
One of the most significant issues in joint retainers is determining who the client is. In a spousal sponsorship, the Canadian-resident spouse is often the sponsor and the person who signs the retainer agreement and pays the legal fees. However, the foreign spouse has a direct and substantial interest in the outcome. A breakdown in the relationship may cause prejudice to the foreign spouse, even if they are not formally named as the client.
These risks should be discussed during the initial consultation and confirmed in writing. Clear communication helps ensure that all parties understand how conflicts may be handled if they arise and whether the lawyer may need to withdraw from acting.
Disciplinary Guidance from Canadian Case Law
Professional discipline decisions provide guidance on how joint retainers should be managed. In Reith, a lawyer acted for multiple parties in a share transfer but failed to explain the implications of a joint retainer or how conflicts would be addressed. The lawyer later became uncertain about who the client was and failed to share relevant information among the parties. This conduct was found to contravene the Code of Professional Conduct for British Columbia, resulting in a finding of professional misconduct and a monetary penalty.
Similarly, in Golden, a lawyer represented both spouses in related property transactions without advising one party to obtain independent legal advice. The failure to address the inherent conflict led to a significant fine following a finding of misconduct.
Employer–Employee Work Permit Applications
Joint retainer issues also arise when employers retain counsel to obtain work permits for foreign employees. Employers and employees may not always share the same objectives. For example, an employee may wish to remain in Canada long-term or pursue permanent residence, while the employer may only be seeking a short-term solution to a staffing need.
Additional concerns may arise if an employee is inadmissible to Canada due to criminal history that has not been disclosed to the employer. The lawyer’s obligation to inform the client of material risks must be balanced against duties of confidentiality and privacy owed to the individual who disclosed the information.
Duties Owed to Interested Parties
In Boraks, the Law Society of Ontario considered whether a lawyer owed duties to a foreign worker despite the absence of a formal retainer. The tribunal concluded that the lawyer did owe a duty of care to the employee as an interested party, given the foreseeable impact of the legal work on the employee’s rights and interests. This decision underscores that duties may arise even where only one party has formally retained the lawyer.
Confidentiality, Disclosure, and Privacy Obligations
Lawyers involved in joint retainers must also consider their duties of loyalty, candour, and confidentiality. Model rules and provincial codes generally require lawyers to provide clients with sufficient information to make informed decisions, while also protecting confidential information obtained during the course of the representation.
In Canada, privacy legislation such as the Personal Information Protection and Electronic Documents Act places limits on the collection and disclosure of personal information. Lawyers must ensure that information is only disclosed with appropriate consent and in accordance with applicable law society rules.
Professional Responsibility and Public Confidence
Provincial rules of professional conduct address conflicts of interest, commitment to a client’s cause, and candour. These rules are intended to protect clients and maintain public confidence in the administration of justice. Transparency regarding who is represented—and on what terms—is central to meeting these obligations.
Conclusion
Joint retainers are a regular feature of immigration practice in Canada, particularly in spousal sponsorship and work permit applications. They require careful planning, clear communication, and thorough documentation. By conducting due diligence at the outset and using written retainers that address potential conflicts and their consequences, lawyers can reduce ethical risks while meeting their professional obligations to clients and interested parties alike.
