A lawyer must take all reasonable steps to avoid circumstances likely to create an actual or perceived conflict of interest.1
A lawyer should take all reasonable steps to ensure that a conflicts check is complete before confidential information is provided or advice is given in initial contact with the client or client’s agent.2
A lawyer should be aware that a solicitor-client relationship and the resulting duty of care may arise prior to a formal retainer.3
InForum 2009-12-21 – Divorce matters in which one lawyer represents both parties may be rejected (see page 3: Notice from the Supreme Court Liaison Committee (Family Division))
CLIA (Canadian Lawyers Insurance Association) – Issue 48 – Winter (2010) – Bulletin # 190 – Does a 7-Minute Call Create a Solicitor/Client Relationship?
CLIA (Canadian Lawyers Insurance Association) – Issue 42 – Winter (2008) – Bulletin # 173 Retainer Letters and Conflicts of Interest
CLIA (Canadian Lawyers Insurance Association) – Issue 22 – September (1998) – Bulletin # 83 Conflict of interest extends to legal support staff
1. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012: Chapter 3: “Relationship to Clients”; section 3.4 “Conflicts”; and section 5.2 “Lawyer as Witness”. FLSC, Code of Professional Conduct, Ottawa: Federation of Law Societies of Canada, 2014, section 3.4 “Conflicts”. Limited exceptions to usual standard for conflict may apply for short term summary advice – see Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012 (January 23/15 amendments), rules 3.4-2B – 3.4-2D.
1. Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 (CanLII) – Outlines duties to clients where there is subsequent retainer by another party adverse in interest to existing client. There cannot be a summary and unexpected dropping of a client to circumvent conflict rules and there is a duty of candour requiring lawyers to advise existing clients of all matters relevant to a new client retainer (para. 10). A new retainer “sufficiently related” to matters worked on for a different client raises a rebuttable presumption that a lawyer possesses confidential information that raises risk of prejudice to clients. Law societies can have stricter conflict rules than those the Court applies and while Court not bound by society rules they are considered important public policy statements. “Bright line rule” that a firm cannot act for a client with interests adverse to another existing client unless both clients consent is not unlimited. It applies where clients’ immediate legal interests are directly adverse. It does not apply to condone tactical abuses or where it is unreasonable to expect the lawyer will not concurrently represent adverse parties in unrelated legal matters (para. 32). Where situations fall outside the bright line rule “the question becomes whether concurrent representation creates a substantial risk that the lawyer’s representation of client would be materially and adversely affected” and determination becomes “more contextual” (para. 38).
2. Sun v. Shao, 2013 BCSC 532 – Lawyer not removed. Staff evidence confirmed intake procedures to avoid taking confidential information.
3. Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC) – Solicitor-client relationship arises from potential client’s first dealings with lawyer or staff when seeking legal representation or advice and solicitor-client privilege can extend to initial conversations even if the retainer is not perfected.
Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII) – Lawyers have a duty not to act against a former client in a related matter whether or not confidential information is at risk. A matter is “related” if the new retainer takes an adversarial position against former client with respect to legal work the lawyer performed for former client or a matter central to the earlier retainer.
Test for Conflict
Strother v. 3464920 Canada Inc., 2007 SCC 24 (CanLII),  2 S.C.R. 177 – Lawyers and their firms owe a fiduciary duty of loyalty to former and current clients which is an element of avoiding conflict. When a lawyer is retained the scope of the retainer is governed by contract but the solicitor-client relationship is overlaid with certain fiduciary responsibilities imposed as a matter of law. Fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. Binnie, J. (for the majority) held that the test to show that conflict creates a material and adverse impact on a client is the possibility rather than the probability of adverse impact, but that the impact must be “more than speculation” (paras. 60 – 61).
Perry v. Wagner, 2014 NSSC 179 (NSSC) – Defendant represented Plaintiff in personal injury litigation. Defendant represented in unrelated matter by counsel for insurer in Plaintiff’s case (Barnes). Plaintiff concerned Defendant’s conduct and commitment to his case in negotiations with Barnes was influenced by this. Lawyer not disqualified, citing Canadian National Railway Co. v. McKercher LLP, 2013 SSC 39 (CanLII), para. 38 as applicable law for assessing conflict claims/fiduciary breaches falling outside “bright line rule.”
MacDonald Estate v. Martin, 1990 CanLII 32. Standards for disqualifying conflict of interest (junior lawyer actively engaged with client joins another firm in litigation adverse to former client). Court concerned with “three competing values: (1) concern to maintain high standards of legal profession and integrity of justice system (2) countervailing value of not depriving litigant of choice of counsel without good reason and (3) permitting reasonable mobility of legal profession. Test is whether reasonably informed person would be satisfied no use of confidential information would occur. This requires two questions to be answered: (1) Did the lawyer receive confidential information attributable to the solicitor-client relationship relevant to the matter at hand? (2) Is there a risk it will be used to the client’s prejudice? (paras. 44-45). Once client shows existing previous relationship sufficiently related to new retainer Court should infer confidential information imparted unless lawyer can displace this difficult onus. Court unlikely to accept measures to protect confidential client information such as “Chinese Walls and cones of silence” as sufficient until governing bodies of legal profession approve and adopt rules re these methods. “A fortiori undertakings and conclusory statement in affidavits without more [as to screening/walls] not sufficient for the Court nor is it likely to be sufficient to satisfy public (para. 50). HELD: Successor firm disqualified. Majority did not comment on test for transferring lawyer not personally involved in a file and minority left this issue “for another occasion.”
Lawyer Claim Against Client for Unpaid Account
Boyd v Boyd, 2008 CanLII 1417 (Ont. Sup. Ct.) – Lawyer sued client for outstanding bill while representing client in family matter. Judgment registered against matrimonial home for unpaid fees before equalization payment satisfied. Deemed conflict and judgment set aside. Court held lawyer could not continue to act. Situation distinguished from informing client who has not paid that lawyer unable to continue representation.
Acting Against Current Client on Unrelated Matter
R. v. Neil, 2002 SCC 70 (CanLII) “Bright Line Rule.” A lawyer may not represent one client with interest directly adverse to immediate interests of another current client even if two mandates unrelated unless both clients consent after receiving full disclosure (and preferably independent legal advice), and lawyer reasonably believes s/he is able to represent each client without adversely affecting the other.
WHAT IS CONFIDENTIAL INFORMATION IN FAMILY LAW FILES?
The nature of family law litigation is emotionally charged and parties are particularly vulnerable. By its nature most information about family law cases will often be perceived as confidential from outset: L.M.B. v. M.R.B., 2003 MBQB 146 (CanLII)
Marinangeli v. Marinangeli,  OJ 3082 (Ont. Sup. Ct.) – Much of the relevant information received was confidential but would have had to be disclosed in any event to the opposing party and much became public record in a prior related family proceeding so lost the quality of confidentiality, but confidential information isn’t limited to financial details. When previously represented by a lawyer now representing her Husband, Wife had disclosed other confidential matters such as concerns and feelings about her marriage and former husband and “the relationship between family lawyers and their clients goes well beyond technical, financial and impersonal information, disclosing whether by direct words or in the very nature of instructions to their counsel their strengths and weaknesses in the processes of settlement discussions, negotiation tactics and litigation strategies, perceptions of the other party’s strengths and weaknesses including the opposite party’s likely approach to various issues and which are likely to be important, and whether a client prefers to “play hardball” on particular issues. These are matters directly personal to a client and affect client directly in pursuit of an effective realization of a just conclusion on the issues. Firm disqualified.
Bell v Nash, 1993 CanLII 845 (BCCA) – Lawyer inadvertently had initial phone interview with Wife of an existing client, booked a meeting and had second conversation. HELD: Lawyer must withdraw due to receiving confidential information (citing Wolfe v. Wolfe, 2003 SKQB 474, para. 46): “The substance of the exchange between these parties that is of significance is not so much the particulars of a concrete sort that were divulged as it is the information that went to the emotional heart of the petitioner’s case.”
DOES “PUBLIC DOMAIN” INFORMATION REMAIN CONFIDENTIAL?
Merrick v. Rubinoff, 2013 BCSC 2352 – Lawyer not required to withdraw for various reasons. Among these, the Court noted with respect to the conflict alleged in current proceedings that information given to lawyer during prior divorce proceedings was no longer confidential since the trial concluded in 2001 and was a reported case.
Lewis v. Lewis, 2006 SKQB 77 – Counsel unsuccessfully argued against being required to withdraw. He argued in family proceedings the obligation to disclose all relevant financial information means any information received from a client is obtainable in a new related proceeding. Argument rejected (see detailed discussion paras. 14 -15).
PROOF OF EXCHANGE OF CONFIDENTIAL INFORMATION
Marinangeli v. Marinangeli,  OJ 3082 (Ont. Sup. Ct.) – Lawyer formerly representing Wife moved to different firm which represented Husband in new but related proceedings. There is a strong inference lawyers who work together share confidences especially in a family law group even if internal “confidentiality screens” are in place. Where confidential information exchanged in prior related matter sufficiently related to current retainer lawyer must rebut inference confidential information was exchanged. High burden to rebut “not likely to be met where the solicitor whose removal is sought argues the motion himself or herself.” Counsel should swear affidavits and not just give assurances as an officer of the Court in argument that no confidential information was exchanged within the family law group. Firm disqualified.
Achakzad v. Zemaryalai, 2010 ONCJ 24 (Ont. Ct. of Justice) – High profile Hague Convention case. Wife unable to keep former counsel (Lewis). On Lewis’ recommendation Wife called Brodkin but unable to pay retainer and later advised Brodkin of that. Brodkin later retained by Husband. Brodkin did not file affidavit but filed law clerk’s affidavit deposing Brodkin had no recollection of calls, not Brodkin’s practice to have detailed discussions with parties who can’t afford retainers, Brodkin receives many general phone calls and usually makes notes but had no notes of these calls, but affidavit still stated Wife’s affidavit was “replete with misrepresentations, falsehoods and exaggerations and no confidential information was discussed.” Clerk’s affidavit did not take issue with content of Lewis’ affidavit. Lewis said he called Brodkin about the file, Brodkin indicated she was aware of the file because Husband’s counsel for Husband mentioned it at a family law conference and Brodkin indicated willingness to assist with case including precedents for the appeal. HELD: Brodkin must withdraw. Lawyer did not meet “heavy burden” to rebut presumption confidential information exchanged especially where she had no notes of the call and Wife’s evidence corroborated by Lewis.
Fisk v. Land, 2004 MBQB 192 – Wife testified she called lawyer (Stoffman), gave confidential information and left a message the next day requesting an appointment but her call was not returned. Husband retained Stoffman’s firm. Stoffman testified he had no recollection of the wife’s call and about firm’s general practice with prospective clients (only information initially taken was that required to check conflicts and caller told no specific questions could be answered until conflict search done and a written retainer signed). Wife said Stoffman did not advise of this standard practice. Stoffman had no notes of discussion with Wife. HELD: Stoffman not required to withdraw. Wife had not met onus to establish confidential information divulged, and in particular (at para. 25):
- “…[E]vidence which merely alleges a discussion of the details of the issues and positions on the issues could be as little as saying, “we own this and that and he wants X and I want Y,” which I would not find to be the imparting of confidential information. If there was more, such as the sharing of a litigation strategy or the sharing of fears or concerns so that the lawyer would have obtained confidential or insider information about the person he now proposed acting against, I would have expected that information to have been in evidence. Without it, I am left to guess.”
WHEN DOES A CLIENT RELATIONSHIP BEGIN?
Initial phone calls/conversations
An initial call or conversation can create a client relationship even if no retainer is perfected: Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC).
Law Society of Saskatchewan v. Shirkey, 2014 SKLSS 9 (CanLII): When a client commenced divorce proceedings in Alberta, he engaged the lawyer to serve the opposing party.When the lawyer served the wife, he met with her and discussed various issues with her. This was interpreted as legal advice by the wife. In proceeding by the law Society of Sask, the member agreed that this was a conflict of interest.
Telephone consultations potential client and lawyer
Shingoose v. Harripersad, 2004 SKQB 526. Despite lawyer’s detailed evidence about “warning procedure” during first call from prospective clients to not disclose confidential information, lawyer not permitted to represent Husband in custody/access/child support proceedings because lawyer’s evidence about content of call was “equivocal.” Lawyer/firm had no standing in the appeal from disqualification: Shingoose v. Harripersad, 2005 SKCA 102.
Consultation between lawyers
Wolfe v. Wolfe, 2003 SKQB 474. Wife’s Ontario divorce counsel contacted Saskatchewan lawyer (Merchant) to obtain advice on Saskatchewan law. Husband later retained Merchant. Merchant said he was not retained, did not recall conversation with Ontario counsel, his notes indicated he received no confidential information and purpose of call was to interview lawyers who might be asked to represent Wife. HELD: Rebuttable presumption confidential information was exchanged with “heavy onus.” Merchant’s notes did not reflect entire conversation and duty of confidentiality arose whether discussion with Wife or her Ontario counsel. Merchant forced to withdraw.
Calls from third parties
Forsyth v. Cross, 2009 SKQB 184. Husband’s mother called Merchant Law Firm to obtain second opinion on custody/access or perhaps hire a lawyer at that firm. She gave particulars including terms of proposed settlement agreement. Husband and mother received letter confirming opinion given to mother by phone. No meetings with Husband or mother. Merchant Law firm not retained and subsequently retained by Wife. HELD: Lawyer must withdraw due to confidential information received from Mother, file opened and opinion letter being sent.
Free first consultation
Sauter v. Sauter, 2003 CanLII 349 (Sask QB) – A 30 minute free consultation can create a solicitor/client relationship. Client said he took notes at meeting. Lawyer’s affidavit indicated he had client’s name in his diary, but could not recall meeting, locate time records or meeting notes and did not open a file or send a bill. His practice at first free meetings was to only give general advice such as reference to the presumption of equal property division and applicability of the Federal Child Support Guidelines and that he would not get into “significant specifics” or paly strategy or do any detailed analysis in that short meeting time. HELD: Lawyer must withdraw.
First consultation no formal retainer
Popowich v. Saskatchewan, 1995 CanLII 5956, (Sask QB) – Initial client intake interview occurred. No formal retainer. Client recalled imparting confidential information. Lawyer disagreed. HELD: Context to determine relationship is if client believes s/he is dealing with a solicitor in a professional capacity. No need for formal retainer. Client’s perception confidential information exchanged disqualified lawyer.
CLIENTS WITH COMPETING INTERESTS
NSBS v. Whitehead, 2014 NSBS 1 (CanLII) – A lawyer must not represent clients with competing interests in the same transaction and even if informed consent is obtained this does not obviate the lawyer’s duty not to act. It is also a conflict to practice law with a lawyer who holds investment or other financial relationships with the firm’s clients.
CORPORATE V. INDIVIDUAL CLIENT
Johnson v. Rudolph, 2013 NSSC 210 – Prior representation of companies linked to an individual did not make the individual a current client in his personal capacity.
Thoma-Lovell v. Lovell, 2011 ONCJ 384 (Ont. Ct. of Justice). – Motion by Husband for removal of Wife’s lawyer from application to vary child support based on Husband’s increased income. Husband claimed Wife’s firm did work for his corporations from which he derived employment income. HELD: No conflict as it was clear any of Husband’s relevant income information was not held in firm records.
Racey v. Racey, 2007 CanLII 47156 (Ont. SC) – Firm previously did corporate work for Husband. Wife retained firm in family matter. HELD: Firm must withdraw. The value of the company on separation, its current value, circumstances of incorporation, including its corporate structure and the conduct of both spouses as officers and shareholders, both before and after separation are or may well be matters of considerable dispute. There was both perception of conflict and real conflict and issues referred to also highlight that it is more than a mere possibility that prior corporate counsel might be a required witness.
Watt v Nicholls, 2011 ONSC 2814 (CanLII): Husband asserted that lawyer for wife in a conflict of interest because he had been a family friend for 20 years, had acted for his company and had been privy to information about the husband’s income. Lawyer ordered removed as Solicitor of Record.
Hermant v. Secord, 2010 ONSC 6444 – Wife applied to void separation agreement. At his prior firm, her lawyer represented Husband’s second wife and also now employed an assistant who worked for the Husband’s lawyer when the separation agreement was signed. HELD: Wife’s lawyer not required to withdraw. Representation of Husband’s second wife did not result in disclosure of relevant confidential information.
Lappin v. Bauer, 2015 NSSC 108. Where situations fall outside the “bright line rule”, there should be a contextual analysis and balancing of factors. In this case, court was satisfied the motion for removal was not brought for a tactical advantage, it was early in the process, and although it was inconvenient to seek new counsel “that inconvenience does not supercede the interests of the Applicant or the [original law firm’s] duty of loyalty to the Applicant.”
Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 (CanLII) – See Footnote 1 Reference Materials.
Merrick v. Rubinoff, 2013 BCSC 2352 – Between 1999 and unspecified date after 2008, lawyer acted for Merrick in divorce, later had some (disputed) drafting involvement with Merrick’s marriage contract with new wife, limited consultation on an intellectual property referred to other counsel and consultation about legal aspects of home renovation. The Court characterized the evidence about the last consultation as “unattributed hearsay” and not relevant to Merrick’s application to have lawyer removed as counsel for lienholder on Merrick’s home. Court did not agree lawyer’s involvement gave him so much insight into Merrick’s character including his “risk tolerance” that lienholder had a litigation advantage, also noting information given to lawyer during divorce proceedings was no longer confidential since the 2001 trial was a reported case. Lawyer not required to withdraw.
Johnson v. Rudolph, 2013 NSSC 210 onus on former client to give clear and cogent evidence of how prior retainers would provide firm with confidential information that would result prejudice in a new unrelated matter.
Millhouse v. Millhouse, 2012 SKQB 499 –The Wife’s first divorce was uncontentious. A settlement was negotiated while the Wife had counsel. Her first Husband’s lawyer drafted the separation agreement. By then, the Wife was in a relationship with her second Husband and his lawyer gave her independent legal advice about the agreement. The Wife waived conflict but approximately five years into the protracted second divorce she asked to remove Husband’s lawyer. HELD: Service to the Wife was confined to determining that she understood and agreed to terms of the agreement giving her sole custody of children from her first marriage. Any parenting attitudes or beliefs discussed in that context would lead an objective observer to conclude such discussions while confidential would have “tended toward the mundane.” The current parenting issues were only as to the parties’ child. The Wife’s other children were now approaching adulthood. Risk that Wife might have disclosed any views prejudicial to the present custody suit would not be readily apparent to the reasonable observer and had she done so the information would be “obsolete.” so the issue was not so much if the subject matter of the two retainers was the same, but whether confidential information learned during the first retainer would now be relevant. The two retainers were insufficiently related to disqualify Husband’s counsel.
Lewis v. Lewis, 2006 SKQB 77 – Lawyer represented Wife in a child support variation in her first divorce. Several years later he represented her second Husband in their divorce. Lawyer unsuccessfully argued that since information obtained in the first proceeding was information the Wife had been obliged to disclose it was not confidential (argument rejected, see paras. 14-15), that this information was irrelevant to the current divorce and he had limited recollection of it in any event. HELD: The Wife’s prior solicitor-client relationship was sufficiently related to require withdrawal, her past earning capacity was relevant to present determination of spousal support and lawyer had not met the heavy onus required to rebut presumption of exchange of confidential information.
Montreal Trust Company of Canada v. Basinview Village Ltd., 1995 CanLII 4247 (NSCA) – It is unethical for a lawyer to represent a client on a foreclosure where the lawyer, his partner, or anyone with whom the lawyer was associated had represented the mortgagor and mortgagee in respect of the mortgage being foreclosed. The existence of conflict in this case does not depend on imputation of confidential information to the lawyer.
FORMER JOINT CLIENTS LATER OPPOSITE IN INTEREST
Card v. Card, 1997 NSCA 2211 (CanLII) – Spouses jointly consulted a lawyer for estate planning advice and documents to implement joint plans for management and ultimate disposition of their assets. Parties later separated. The same lawyer sought to represent Husband in property sale and as to how Husband might best protect assets. Lawyer removed given he had previously represented Wife.
FORMER JOINT CLIENTS/NEW ASSOCIATES
Reagh v. Reagh, 2005 NSSC 365 (NSSC) – Lawyer Parker did various types of work for the Reaghs between 1980 and 2001, while a partner with Gillis. Gillis and Parker worked out of separate office locations and kept their files separate. The partnership dissolved in 2003. Wife started divorce proceedings in 2003. Schumacher joined Gillis in 2005 and was retained by Mr. Reagh for the divorce. While solicitor-client relationship with Parker was imputed to Gillis due to prior partnership, physical and organizational structure of partnership negated any real impact/consequences as between Gillis and the Reaghs. Schumacher did not and could not receive any confidential information Parker might have acquired that could be used to the detriment of the Wife. No conflict.
LAWYER AS A WITNESS
Brogan v. Bank of Montreal, 2013 NSSC 76 – If a lawyer may be a witness in a proceeding it is a conflict for the lawyer to represent a party to a proceeding. It may not be a conflict for another member of that lawyer’s firm to act, depending on other relevant factors especially at an early stage in the proceedings there is uncertainty whether a lawyer giving discovery evidence will be a trial witness. Plaintiffs given right to bring a future motion as case proceeded to remove Brogan’s partners/associates and cautioned their counsel might “get heavily involved” and be removed before trial.
Mazinani v. Bindoo, 2013 ONSC 4744 (Ont. Sup. Ct.) – Detailed outline of factors to consider and applicable law to compel lawyer to withdraw if a potential witness.
Clarke v. Penney Estate, 2013 NLTD(F) 34 (Nfld. and Labrador SCTD) – Clarke sued late husband’s estate for division of matrimonial property and support. Respondent daughter and Executrix represented by lawyer from a firm that included lawyer Stack. Trial issues included validity of cohabitation agreement. Respondent filed Stack’s affidavit recounting conversations with deceased about Cohabitation Agreement and subsequent amendments. Respondent maintained Stack’s Affidavit met all requirements for an acceptable and admissible “Solicitor’s Affidavit” and did not support the conclusion he might be a witness cross-examined by his own firm and also argued proceedings were at a stage where too late to assert conflict. HELD: Proceedings not at a stage where prejudice from delay outweighed conflict concerns and there was likelihood Stack might be a witness. Firm could not represent estate.
PERSONAL INVOLVEMENT WITH CLIENTS
Zaldin v. Zaldin, 2014 ONSC 6504 (Ont. Superior Court of Justice): Custody dispute. Husband’s lawyer was his uncle. Lawyer had close personal relationship with Husband, and close personal and business relationship with Husband’s father. Lawyer must withdraw.
Windsor-Essex Children’s Aid Society v. D.(B.), 2013 ONCJ 43 (CanLII) – Lawyer was Respondent’s father and found to be personally and emotionally involved with both Respondent and her child. Respondent had cognitive limitations, relied on her father and was influenced by him. Father had conflict of interest with Respondent due to personal interest in outcome. Father had also expressed concerns about paternal grandmother and likely to be called as a witness. Father cannot represent.
Law Society of Upper Canada v. Stuart Martin Ghan, 2012 ONLSHP 98 (CanLII) – Lawyer acted for girlfriend in contentious dispute with girlfriend’s ex-partner. Initial assistance was personal regarding access to child while girlfriend initially had (but later lost) counsel. Boyfriend subsequently arranged for his firm to represent her, assisting as junior counsel. He was eventually removed for conflict, although senior counsel from his firm continued with the trial. Evidence by girlfriend and senior counsel differed as to discussions of retainer especially whether involvement of her boyfriend as junior counsel was “considered and approved” by girlfriend. Findings at discipline proceeding included that there was insufficient disclosure to permit proper waiver of conflict by girlfriend and “even with full disclosure” the girlfriend was “in such a vulnerable position (in part due to issues around abuse, mental health problems and substance abuse) that she could not provide the consent required by Ontario’s Professional Conduct Rule 2.04(e). Other circumstances of vulnerability arose from the personal relationship (see para. 78) and the boyfriend’s personal dealing with girlfriend’s ex-partner giving rise to potential he would be a witness either for or against her. Lawyer disciplined.
Kam v. Hermanstyne, 2011 ONCJ 101 (CanLII) – Respondent cohabited with his lawyer. She was removed as counsel citing Ontario Code referencing potential impaired judgment of counsel in such situations.
Burgess v. Burgess, 1997 CanLII 788 (BC S.C.) – The Wife sought to retain counsel in a divorce who represented the Husband shortly before separation to prepare a will. The Husband also had a “loose” social relationship with the lawyer. The “loose social relationship” was not grounds for disqualification but the wills retainer was sufficient to trigger the lawyer’s disqualification.
WAIVER OF CONFLICT
Enterprise Cape Breton Corp. v. Crown Jewel Resort Ranch, Inc., 2014 NSSC 105 – Initial retainer by corporation where shareholder subsequently involved in divorce proceedings. Husband’s conflict motion in receivership proceeding had “unmistakeable flavour” of tactic designed to delay receivership proceeding. Husband voluntarily provided information about divorce that might otherwise be confidential with awareness of potential conflict. No conflict previously asserted. Motion dismissed.
Francis v. Cook, 2004 SKQB 57 – Lawyer Graf represented Cook when he divorced his first Wife. Cook consented to Graf representing his second Wife on the understanding Graf believed the first divorce file had been destroyed. Without notice to Cook that Graf had been able to retrieve the file, Graf produced excerpts from the file that were favourable to the Wife in a conference brief. HELD: When Graf discovered he had the file he should have withdrawn or at least informed Cook he had the file. Finding the file changed the “factual foundation and basis” for Cook’s waiver. Graf disqualified and ordered to pay solicitor-client costs to Wife for all steps in litigation from the date Graf knew he had the file and failed to withdraw and to Cook for all costs of the application to have him withdraw.
DELAY IN ASSERTING CONFLICT
Johnson v. Rudolph, 2013 NSSC 210 – Excessive delay in raising conflict may result in dismissal of motion to disqualify.
Merrick v. Rubinoff, 2013 BCSC 2352 – No conflict found with Court also noting removal of counsel is a “drastic remedy” that should not be imposed where pleadings closed, document discovery completed and cross-examination on affidavits scheduled, and where over a number of months applicant had implicitly accepted that his former lawyer was now acting against him, including responding twice to interlocutory steps.
Fisher v. Fisher, (1986), 73 NSR (2d) 181 (NSTD) Wife had lengthy consultation re: divorce with firm before commencing divorce but did not retain firm. Firm unable to represent Husband. Wife’s delay in asserting conflict resulted in costs against her, costs reversed in Fisher v. Fisher 1986 CanLII 2000 (NSCA).
REASONABLE STEPS TO AVOID CONFLICT: LAWYERS TRANSFERRING BETWEEN FIRMS
Her Majesty the Queen v. Chartis Insurance Company of Canada, 2014 ONSC 4221 (Ont. Sup. Ct) – Lawyer representing plaintiff in three class action lawsuits moves to new firm with extensive knowledge of confidential information. Lawyer not working on plaintiff’s file but working extensively on other files with counsel representing defendants. Ethical screening procedures suggested by Law Society Guidelines implemented before transfer in and supervised by senior partner. Application by defendants’ firm for declaration that screening procedures sufficient to prevent conflict. HELD: No need for withdrawal. Small chance of “inadvertent disclosure” in professional interactions between counsel balanced against impact of disqualification on opposing parties’ right to counsel of choice, with reference to “particular challenge” to avoid contact between lawyers in small firms (paras. 37, 40, 42).
Berg v. Bruton, 2005 SKQB 525 – Detailed outline of procedures put in place as written firm policy when lawyer transferring in including policies for assistants accessing information. HELD: Firm took all reasonable steps required and not required to withdraw from custody/access file.
Howard v. Howard, 2015 ONSC 1499 (CanLII): Application to remove wife’s lawyer, after husband’s former counsel joined the firm of wife’s lawyer. Not every transfer of lawyers from one firm to another will automatically raise a conflict of interest requiring a client to obtain new counsel. A contextual approach is required depending on the facts of the case. This is a family law matter, where parties are most vulnerable. The court was satisfied that a reasonably informed person, having considered all of the facts in this case, would have a concern, notwithstanding any institutional measures, when a client’s lawyer, possessing confidential information, joins a law firm representing the client’s former spouse.
A non-professional employee’s change of firms can give rise to a disqualifying conflict of interest: Hildinger v. Carroll (2004), 2 R.F.L. (6th) 331 (Ont. C.A.); Chern v. Chern (2006), 55 Alta. L.R. (4th) 28 (C.A.) 18; Ocelot Energy v. Jans, (1998), 165 Sask.R. 252 (Q.B.)
MSK V. TLT, 2011 ONSC 5478 (Ont. Sup. Ct.) – Custody case. Legal assistant who had worked for Mother’s former counsel now worked at firm that had represented Father throughout entire matter. Mother insisted she had met assistant and given personal information. Father’s lawyer argued assistant’s work was only clerical at both firms and assistant never had access to confidential information. HELD: Previous litigation related to current file. Clients frequently give assistants confidential information and Court had no doubt during work for Mother’s firm assistant would have been apprised of file status, issues and various proceedings even if not part of lawyer-client meetings. Clients often tell assistants information to pass along when lawyers are unavailable and there is no doubt assistant received confidential information even if she cannot recall this. Lack of recollection also has no bearing on issue of solicitor/client confidentiality, lawyer failed to meet heavy onus to establish no confidential information exchanged, did not file affidavit and Father did not adduce evidence to establish prejudice caused by having to find new counsel. Firm required to withdraw.
Hermant v. Secord, 2010 ONSC 6444 (Ont. Sup. Ct.) – Wife applied to void separation agreement. At his prior firm, her lawyer represented Husband’s second wife. He also now employed an assistant who worked for Husband’s lawyer when the agreement was signed. HELD: Lawyer not required to withdraw. Representation of Husband’s second wife did not result in disclosure of relevant confidential information and adequate steps were taken before hiring the assistant to ensure compliance with conflict of interest rules of professional conduct. The Court noted Ontario Rules of Professional Conduct contained commentary to state that adoption of procedures to protect confidential information may be adequate in some cases and professional standards do not always have to be complied with to overcome disqualification and each case must be analyzed on the particular facts citing Bank of Montreal v. Dressler, (2002), 253 N.B.R. (2d) 37 (C.A.) and Robertson v. Slater Vecchio, (2008), 81 B.C.L.R. (4th) 46 (C.A.).
Krupp v. Krupp (2003), 27 C.P.C. (5th) 301, 2002 CarswellOnt 2799 (WC),  O.J. No. 3299 (QL) (Ont. Sup. Ct.) NO LINK – Assistant transferred from a firm representing Husband in a divorce to firm representing Wife. HELD: No conflict. Assistant’s ability to access a file did not establish she had in fact accessed it and new firm did not permit assistant to work on the file.
Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012:
Chapter 3: “Relationship to Client”
section 3.4 “Conflicts”
section 5.2 “Lawyer as Witness”
CBA: Protecting Your Client, Yourself and Your Firm: When and How to Use an Engagement Letter Jan. 27, 2011.
CBA: Short-term Agreements for Legal Services: Avoiding Conflicts through Plain Language Drafting (Recording), Jan. 24, 2012
ARTICLES AND BOOKS
Cotter, Brent / The Supreme Court of Canada speaks on lawyers’ conflicts of interest (1991), in Nova Scotia Law News vol. 17 p. 125.
Devlin, Richard; Rees, Victoria / Conflicts of interest : where are we since R v. Neil?: case comment (February 2006), in Nova Scotia Law News, vol. 30 no. 6, p. 113.
Gillis, Deborah E. / Effective Intake Procedures (Part 2) (October 2006) in Society Record, vol. 24, No. 5
Macnair, M. Deborah / Conflicts of interest: principles for the legal profession—Aurora, Ont. Canada Law Book, 2005. [KB 29 .L5 M169 2005]
Murray, Donald C / A conflict of interest refresher (2000), in Nova Scotia Law News, vol. 25, p. 29.
Parish, Alan V. / Conflict of interest: the continuing saga of Martin v. Gray (January 1994), in Bar refresher 1994. [KB 7.25 N935 1994]
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Pinnington, Dan / Conflict of Interest: The Third Most Common and second most costly Malpractice Error (March 2003) in LawPro Magazine
Approved by Council on March 25, 2011