Friday, January 23, 2009

Lawyer Disqualification for Abusive Advocacy

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"...[28] On facts unrelated to the issues here, in the matter of Zawadzki v. Matthews Group Ltd. (1998), 18 C.P.C. (4th) 373, [1998] O.J. No. 43, 50 O.T.C. 392, 1998 Cars­well­Ont 197 (Ont. Gen. Div.), the general proposition was put that the court’s discretion to interfere with a party’s choice of counsel is to be exercised with the highest degree of restraint. The proper test for such interference is the probability of real mischief. It is noteworthy that, in that particular case, the allegations centred around the lawyer’s alleged abuse of the advocacy role in an adversarial proceeding, similar to the position of the children’s aid society that the lawyer in this case, out of animosity, might abuse that role to the detriment of the client, for example, by refusing a reasonable or beneficial offer of settlement.

[33] ... However, a similar test to meet the facts in this case can be derived from the Supreme Court of Canada test related to conflictual use of information — would a reasonably informed person be satisfied that historical, extant or future involvement with one litigant personally by a lawyer would cause the lawyer to act in such a way in advocating for a client against that other litigant that the lawyer would jeopardize the position of that client?

[37] In the result, there was no fact or circumstance in existence or reasonably seen to be capable of coming into existence that could cause the lawyer to consider acting contrary to the client’s interests.

[40] Even if one made the assumption, for purposes of the argument, that facts risking conflict could arise, it is clear that the interest of the lawyer is akin to the interest of the client, not to the interest of the children’s aid society. What really has to be asked is what mischief is to be avoided, what is the likelihood of that mischief occurring and how do these considerations weigh against that of maintaining the integrity of the system, the right to counsel of choice and the maintenance of mobility in the system?

[41] The conflict of interest complained of must relate to an identifiable interest of the moving party, either directly — use of information or documents related to that party — or indirectly — the Crown Attorney cases related to administration of justice and delay of trial.

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