Friday, January 23, 2009

Another Example of Disqualifying Conduct that is a Conflict of Interest as Such

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"...[21] The defendant argues that the court should be guided by the principals set out by the Supreme Court in MacDonald Estate v. Martin, 1990 CanLII 32 (S.C.C.), [1990] 3 S.C.R. 1235 (S.C.C.). While the matter in issue in that case is the existence of conflict of interest, the Supreme Court, in broad terms, is concerned with the conduct of solicitors and the violation of ethical standards that govern them. The ultimate pre-occupation of the court, argues the defendant, is the public's confidence in the process, its perception of the fairness of the judicial system and the avoidance of even the appearance of impropriety..."

[22] The defendant submits that while the court has jurisdiction to remove counsel on the basis of the breach of the rules of professional conduct, there need not be a breach. The applicable test is whether on the facts, a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice requires the disqualification of the solicitor of record: Everingham v. Ontario, reflex, (1992) 88 D.L.R. (4th) 755 affirmed reflex, (1992) 8 O.R. (3d) 121) and MacMillan Bloedel v. Freeman & Co. [1992] B.C.J. No. 2815. Counsel for the defendant agrees that whether the court intervenes to remove counsel on the basis of the stated test will depend on the circumstances of the case. In this case he argues, Gowlings' conduct is such as to clearly disentitle the firm from further implication in this action.

[32] Justice Oliver in McMillan Bloedel, considered Everingham and distinguished it as follows at page 8 of the decision:

The test set out in Bell and Nash and in Everingham, whether a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor, would obviously produce different results depending on the circumstances which gave rise to the call for removal. Communication between a lawyer and a confined mental patient or an emotionally vulnerable matrimonial litigant has far greater potential for creating an "obvious appearance of unfairness" and a risk of real mischief than does communication between a lawyer and an experienced business executive. Parallels between the these situations cannot readily be drawn.

[34] Neither party brought to my attention the decision of Brennan J. in Transamerica Life Insurance Co. of Canada v. Seward 1997 CanLII 12144 (ON S.C.), [1997] 33 O.R. (3d) 604 (General Division). Here again, the court had under consideration the boundaries of the principles relating to communications with represented parties and witnesses. In its conclusions of law, the court echoes the principles stated in MacMillan Bloedel, supra. It advises deference to Law Societies to deal with breaches of codes of conduct and at page 6 of the decision, makes the following statement as to when the court should intervene to remove counsel:

The integrity of the justice system would be ill-served if the court too readily disqualified counsel at the suggestion of adverse parties. An "appearance of impropriety" is not an appropriate test in cases other than those of true conflict of interest, particularly when the appearance is to the eye of the adverse party. I accept the submission of the responding party that Lerner's primary duty was to serve the interests of its client. There are situations in which the public interest will prevail over that duty, but the court should be vigilant against interference with it on all but the strongest grounds. Such grounds do not exist on these facts, and the motion to disqualify counsel must fail. [My--the court's-- emphasis]

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