Friday, January 23, 2009

Lawyer Bounced For Personal Stake In Outcome
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[1] The defendants, other than Walter Jack Rinzema, move to have plaintiff’s counsel, Mr. Robert Kostyniuk, Q.C. removed as counsel of record on two grounds:
1. there is a conflict of interest between the plaintiff and Mr. Kostyniuk...

Conflict of Interest
[16] Law Society of Upper Canada Rules of Professional Conduct Rule 2.04:

Definition 2.04 (1) In this rule, a "conflict of interest" or a "conflicting interest" means an interest
(a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or prospective client, or (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.

Avoidance of Conflicts of Interest 2.04 (2) A lawyer shall not advise or represent more than one side of a dispute. 2.04 (3) A lawyer shall not act or continue to act in a matter when there is or is likely to be a conflicting interest unless, after disclosure adequate to make an informed decision, the client or prospective client consents.

[17] In Roberts v. Pega Capital Corporation 2000 CanLII 22334 (ON S.C.), (2000), 47 O.R. (3d) 317 at page 319, the court stated:

In approaching the issue of the removal of counsel a paramount concern should be to maintain the high standards of the legal profession and the integrity of the justice system ...

Mr. Roberts has a substantial financial interest in the outcome of this litigation. There is a significant risk that the line between his personal interest in the litigation and his duties as counsel for the other parties might be blurred. This is not because of anything unique to Mr. Roberts. It is simply because it is often human nature to put one's personal interest ahead of one's obligations.

An informed and reasonable member of the public might well be left with the impression that any particular decision taken by Mr. Roberts as counsel for his co-plaintiffs could, in fact, have been motivated by his pecuniary interest in the outcome. This apprehension would surely bring the administration of justice into disrepute.

[23] Mr. Kostyniuk has acknowledged that the outcome of this action will have an effect on his claim with LPIC. His refusal to answer the two questions I have referred to lend credence to the fact that there is a nexus between the success of this action and Mr. Kostynuik’s exposure to LPIC. Again, without making any finding or determination that Mr. Kostynuik would put his own interests ahead of his client’s, those circumstances result in a perception that adversely affects the administration of justice.

[24] On this ground I am satisfied that Mr. Kostynuik ought to be removed as counsel..."

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