Joint Retainers in Estate Disputes

Joint Retainers in Estate Disputes

Sales v Fisher 2019 BCSC 1050 dealt with a common situation in estate disputes, namely where two or more clients retain the same lawyer in what is known as a joint retainer.

Before entering such a relationship, the lawyer must canvass with the prospective clients that they are all of the same interest, and in agreement as to how to divide litigation wins or losses.

Each province has a professional conduct handbook governing the legal profession in that province that basically codifies the law, as set out in Phipson On Evidence  as follows:

“A joint retainer is when two parties (or more) employ the same solicitor, the rule is that communications passing between either of them, and the solicitor, in his or her joint capacity, must be disclosed in favor of the other.e.g. , a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though is otherwise as to communications made to the solicitor in his exclusive capacity.

The court stated that this is trite law.

In other words, when a lawyer is acting for two or more clients at the same time, all communications must be disclosed to all parties, which makes it near impossible for one  client to have a confidential talk with the lawyer without the lawyer being ethically bound by the joint retainer to communicate that communication to the other clients.