Client Conflict Rules and Intellectual Property Practice in Canada

Abstract:

Lawyers have a duty to avoid conflicts of interest. Although the Canadian Bar Association and provincial law societies have promulgated codes of ethics relating to conflicts, the rules of more immediate interest are those set by the courts. The rules vary depending on the relationship between the lawyer and the client. As a result, they have special implications for intellectual property practice: maintenance files remain dormant yet still active for decades; “associate” prosecution files involve a third-party intermediary between the lawyer and client; and the conflict rules pertaining to “lawyers” may apply differently to patent and trade-mark agents. This article explores the courts’ conflict rules as they pertain to various aspects of intellectual property practice.