Friday, January 23, 2009

Disqualify Opposing Lawyer Who Has a Relationship With Her Client
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"...[1] The respondent wife (“Nellist”) brings this motion to remove Dianne Grenier (“Grenier”) as the solicitor for the applicant husband (“Taylor”) in this matrimonial action.

[22] The standard for the removal of counsel is an objective one, being that of a reasonably informed member of the public. See the case of MacDonald Estate vs. Martin, 1990 CanLII 32 (S.C.C.), [1990] 3 S.C.R. 1235. Thus, a solicitor should be removed as solicitor of record if a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. See the case of Everingham vs. Ontario, 8 O.R. (3rd) 121, at paragraph 29.

[23] Moreover, there does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test. In MTS International Services Inc. v. Warnat Corp. Limited, [1981] 31 O. R. 221 at page 224 Justice Montgomery wrote, “A lawyer should avoid even the appearance of professional impropriety.” This is particularly true when the litigation involves a family dispute. See the case of Goldberg vs. Goldberg, (1982) 31 R.F.L. (2nd) 453 at paragraph 8.

[24] The basis for the above-mentioned statement of the law in this area can be summarized by that well-known quote from the case of R. vs. Sussex Justices, [1924] 1 K.B. 256 at page 259, “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

[34] In the Everingham case one solicitor had, by coincidence, encountered a mental patient whom he was scheduled to cross-examine the next day. The solicitor described the meeting as brief and innocent. In confirming that the solicitor should be removed from the record, the Divisional Court wrote at paragraph 33:

“It is irrelevant that the solicitor’s innocent version of the meeting is eventually found by a court to be preferable to the patient’s version of the meeting. Apart from the obvious appearance of compulsion, oppression, and deprivation of counsel, it is inevitable that such a meeting will produce different versions of the conversation. That is the mischief to be avoided, yet that is the very mischief that occurred here in the patient’s version of what happened and the impression left with him that the meeting was prearranged with a view to gaining an advantage over him.”

[38] The weekend access of July 23rd demonstrates how these problems can escalate. The problems with respect to the extension of the access visit were probably a misunderstanding. However, by that weekend both Grenier and Birmingham had been involved in access exchanges without Nellist’s consent, and Marcus had made disclosures to Nellist about his relationship with Grenier. It was reasonable for Nellist to be very suspicious and very sensitive regarding any changes to the access schedule. The misunderstanding on this weekend simply provides more evidence of what may occur when there is the appearance of impropriety.

[39] For all of the above reasons I find that a reasonable, fair-minded person would believe that the proper administration of justice requires Grenier’s removal as Taylor’s solicitor in this case.


[40] Therefore, Nellist’s motion is granted. Grenier is hereby removed as solicitor of record for Taylor..."

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