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Legal Ethics, Fiduciary Obligations, Duty of Loyalty


The “conflicts quartet” of cases decided by the Supreme Court of Canada can be understood as part of a long-standing tension in Anglo-Canadian jurisprudence between two competing conceptions of a lawyer’s professional identity. In the most recent of these cases, C.N. Railway v. McKercher, the Supreme Court conclusively preferred the loyalty-centred conception of the practice of law over the entrepreneurial conception. While the Federation of Law Societies of Canada amended its Model Code of Professional Conduct in 2014 in response to the Supreme Court’s decision in McKercher, this article argues that those amendments did not go far enough. The authors propose a more substantial set of modifications to the Model Code to better entrench the duty of loyalty as a foundational principle of legal ethics. These amendments, they argue, would better reflect the reasoning in McKercher and would provide lawyers with a lodestar to guide their ethical judgement.