Code of Professional Conduct for Patent Agents and Trademark Agents Regulations — 5
5 (1) Before an agent acts in a matter or transaction for more than one client, the agent must advise each of the clients that (a) the agent has been asked to act for all of them; (b) no information received in connection with the matter or transaction from one client can be treated as confidential so far as any of the others are concerned unless the clients instruct otherwise; and (c) if a conflict develops and cannot be resolved, the agent cannot continue to act for all of them and may have to withdraw completely from the matter or transaction. COMMENTARY Although this rule does not require that an agent advise clients to obtain independent legal advice before the agent accepts a joint retainer, in some cases, the agent must recommend seeking such advice in order to ensure that the clients’ consent to the joint retainer is informed, genuine and uncoerced, especially when one of the clients is less sophisticated or more vulnerable than another. (2) If an agent has a continuing relationship with a client for whom the agent acts regularly, before the agent accepts a joint retainer for that client and another client in a matter or transaction, the agent must advise that other client of the continuing relationship with the first client and recommend that the other client obtain independent legal advice with respect to the joint retainer. (3) When an agent has advised the clients as required by subsections (1) and (2) and the parties are content to have the agent act for them, the agent must obtain their consent and confirm that consent in a separate written communication to each client. COMMENTARY Even when all parties concerned consent, an agent must avoid acting for more than one client when it is likely that a contentious issue will arise between them or that their interests, rights or obligations will diverge as the matter progresses. (4) Except as provided in subsection (5), if a contentious issue arises between clients who have consented to a joint retainer (a) the agent must not advise them on the contentious issue and must (i) refer the clients to other agents or to legal counsel, or (ii) advise the clients of their option to settle the contentious issue by direct negotiation in which the agent does not participate and recommend that the clients each obtain independent legal advice, and (b) the agent must withdraw from the joint representation if the contentious issue is not resolved. COMMENTARY If, after the clients have consented to a joint retainer, a contentious issue arises between them or between some of them, the agent is not necessarily precluded from advising them on non-contentious matters. (5) If clients consent to a joint retainer and agree that if a contentious issue arises the agent may continue to advise one of them, the agent may advise that client about the contentious matter and must refer the other clients to another agent. COMMENTARY This rule does not relieve the agent of the obligation to obtain the consent of the clients when the contentious issue arises if there is or is likely to be a conflict of interest or if the representation on the contentious issue requires the agent to act against one of the clients. When entering into a joint retainer, the agent must stipulate that if a contentious issue arises the agent will be compelled to cease acting altogether unless, at the time the contentious issue arises, all parties consent to the agent’s continuing to represent one of them. However, consent given before the fact may be ineffective since the party granting the consent will not at the time of their consent be in possession of all the relevant information.