Friday, November 25, 2016

Loyalty, Conflicts & Judicial Writing in an Ontario Family Law Decision

1.         Introduction
A recent Ontario family law decision considered the lawyers’ conflicts rules in the context of a family law proceeding.  The case is unusual in that it presents a rare consideration of professional and ethical obligations for lawyers, by a Court at first instance.
The ruling highlights the respective roles of the Courts and Law Societies in lawyer professionalism.  The judgment also examines obligations to former family law clients under the duty of loyalty.  Last, the decision touches on the questions of appropriate judicial writing practices.
The rest of this blog critically examines these issues and identifies some potential weaknesses in the legal reasoning utilized in this case.  I conclude that some parts of the law of lawyers’ conflicts and the duty of loyalty are not well described in the decision and that the jurisprudential value of the case may therefore be limited.
2.         Background Facts 
The June 17, 2016 Ontario Superior Court decision in Hogarth v Hogarth[1] involved a motion for disqualification in a matrimonial dispute. Several months prior to the start of the spousal litigation in 2015 between the Hogarths, a third party, Mr. Antony “Nella”, consulted with the lawyer Mr. Harold “Niman”.  Nella was seeking to retain Niman in relation to his own separate matrimonial dispute. 
As later became clear,[2] Nella was also dating the wife, named Constance Hogarth, in the underlying matrimonial dispute, and was described by the Court as her “boyfriend”.  Ultimately Nella did not retain Niman after his consultation.  Niman went on to represent the husband, Timothy Hogarth, in the litigation that was commenced a few months later.
The 2016 motion before the Court made a number of assertions in relation to the lawyer’s professional obligations.  These included that Niman breached his duties of confidentiality, loyalty and candour to Nella.  The motion also objected to Niman’s sharing of the file and information about Nella with his own counsel, and to the possibility that the lawyer might have to cross-examine the “boyfriend” who had earlier sought to retain him.
3.         The Law of Conflicts
The Court considered in some detail the duties owed to former clients,[3] and the test set out in MacDonald Estate v Martin.[4] That is:
The court must determine (i) did the lawyer receive confidential information to a solicitor and client relationship relevant to the matter at hand and (ii) is there a risk that it will be used to the prejudice of the client.
The Court went to quote Macdonald Estate with respect to the well-known conflicts of interest test about whether two matters are “sufficiently related”:
If a former client can establish that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted which could be relevant “unless the solicitor satisfies the court that no information was imparted which could be relevant”.[5]
The Court reviewed the case law and further jurisprudential refinements on these legal tests and observed the test for removal of a lawyer because of a conflict of interest is an objective, reasonable person test.[6]  Last the Court also noted,[7] where the former client cannot establish a sufficient relationship between two matters, it can still lead evidence that the lawyer or law firm actually possesses relevant confidential information.
4.         The Findings
The Court reviewed the nature of the relation, communications and documents exchanged between the two, but found no grounds to support a claim that the matters were ‘sufficiently related’.[8]  The Court also found that Nella did not establish that Niman actually possessed relevant confidential information.[9]
The Court also reviewed what it characterized as the two aspects of the duty of loyalty owed to former clients.  The first is the risk identified in McKercher, to refrain from using confidential information.[10]  The Court also identified a more limited “narrow duty”, where the chance that confidential information being at risk is absent,[11] but where a lawyer might undermine the previous legal work of a former client by taking an adversarial position in current litigation.  
The Court also found no evidence to support a limited duty of loyalty owed by Niman and also no evidence to support a claim of conflict, without some connection in the legal work between the Nella and Hogarth litigation matters.  In this respect the Court determined that there was no evidence that Niman was taking an adversarial position with respect to issues arising from the Nella litigation.[12]  In the end the Court did not allow the motion to succeed.
5.         Discussion
i)          Courts Have Discretion to Enforce Lawyer Professionalism.
I’ve noted previously the judicial assertion that the authority of Ontario’s Law Society is “unqualified” in professional regulation.  Such statements are likely overly broad in general. More specifically though, this case shows the institutional independence of law societies to enforce professional standards is qualified by the role of the Courts, who also retain significant discretion to engage in examinations of lawyers’ professional conduct.
The fact it was the Court that considered the professional obligations of a lawyer in this family matter may also explain why there was no reference to the Law Society’s Rules of Conduct.  The lawyer rules do not provide a definitive guide of procedural conduct and there are other sources for lawyer ethical obligations, including case law. 
However, it is disappointing that the decision relied entirely on jurisprudence, given these professional obligations are spelled out in some detail in the Rules.  For example, despite the central question of conflicts in this case, at no point in the decision did the Court expressly consider the regulatory definition of a professional conflict of interest or the scope of the duty to avoid conflicts within the professional Rules.[13] 
ii)         What, Exactly, Is The Duty of Loyalty?
The analysis contained within the judgment may also have missed or conflated some of the applicable professional obligations under the lawyers’ duty of loyalty. As noted in the Rules, the duty of loyalty is the overarching obligation owed by lawyers to all clients.  It is usually described as consisting of four separate parts: the duty of confidentiality; and the duty to avoid conflicting interests; the duty to commit to the client’s cause, and; the duty of candour. [14]
However, in this case, the judge seems to have directly considered only parts of the duty of loyalty: first, the possible breach of ‘confidence’; then, the duty of loyalty owed to former clients, and; finally, the duty of candour. 
iii)        Confidentiality
The Court noted the jurisprudential recognition of the especial importance of confidentiality in family law matters.[15]  However, the Court found the matters were not ‘sufficiently related’ enough to infer that confidential information, if it existed, would be misused.[16]  The judge also found after a review of the nature of the relation, communications and documents, that there was not ‘clear and cogent’ evidence that the matters were sufficiently related enough to disqualify Niman.[17]
In a related finding later in the decision, the Court also found that since no disqualifying confidential information was received by Niman, the possible cross-examination of Nella by Niman in the Hogarth proceeding would be appropriate.[18]
As a final element of the lawyers’ confidentiality obligation, the judge also considered the appropriateness of the lawyer retaining his own counsel to represent him in the motion. On this point, the Court accepted the acquiescence of opposing counsel to not pursue the issue.  Here, again, though the Ontario professional Rules speak directly to such circumstances, they were not referred to in the judgment.[19] 
iv)        Duty of Loyalty and Commitment To a Client’s Cause
The Court also considered the duty of loyalty as a separate obligation seemingly distinguishable from the ‘law of conflicts’.[20]   After canvassing the case law, the Court determined that absent a breach of confidence, the duty of loyalty to a former client in this respect is limited “to attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client”.[21] 
However, these passages arguably conflate some aspects of the duty of loyalty.  For example, while touching on the ‘law of conflicts’, this aspect of the overall duty of loyalty is perhaps better understood as part of the separate duty of commitment to a client’s cause.  At the termination of the professional relation, this duty of commitment remains in part to prevent a future adverse interest from interfering with the ongoing loyalty to the legal interests of a former client.
v)         Duty of Candour
The Court did consider the final aspect of the duty of loyalty in several paragraphs and found this duty was not breached.[22]  While the findings with respect to the duty of candour are consistent with other determinations in the decision, there is little reference to any legal authority in relation to the scope and nature of the obligation.[23] 
This gap may be partly understandable in the sense that there remains scant interpretive jurisprudence about the duty of candour in Canadian law.  However, like the other three aspects of the duty of loyalty, there is some regulatory guidance and commentary, which arguably might have helpfully supported the Court’s determination in this instance.[24]
6.         Some Last Thoughts & Conclusion
As a final thought, the forms of address employed by the Court in this decision are somewhat troubling.  It is not clear why, but the judge consistently refers to the moving parties and husband throughout the judgment by versions of their first names (“Connie”, “Tim” & “Antony”).  By contrast the lawyer, whose professional conduct was challenged in the motion, is always referred to by his last name.
I think this observation touches on the recent discussion in Canada of the appropriateness of judicial writing styles, see e.g. here.  In this case, it’s possible that a judicial writing style that uses first names, and in two cases here a diminutive form of the litigants’ given names, could be perceived as overly familiar or even patronizing by some.
Such a possible perception may be especially problematic where an adjudicative official differentiates their manner of address and uses a more formal surname to identify one of the parties, as occurred in this case.  Consequently, to the extent that such a perception might be reasonable, in my opinion the employment of first names in this way is a judicial writing technique that ought to be discouraged.
In the end, the Ontario Superior Court decision in Hogarth provides a rare example of the consideration of lawyer professionalism issues by the Court directly in a family dispute.  I have deliberately refrained from questions about the ultimate determination.  This is partly because my opinion and feelings about the legal reasoning here are mixed, as set out above, but also because my purpose instead was to consider the application of the law in an important and developing area of lawyer professionalism.  
Ultimately, aspects of the legal reasoning within the decision appear confusing in relation to the applicable law of lawyers’ conflicts.  As a result, this case may not prove especially helpful in advancing the jurisprudence on these issues.

[1] Citations are to CanLii, embedded.  Also reported at 131 OR (3d) 736; 2016 ONSC 3875 ["Hogarth"].
[2] The Court determined that Niman was not notified about the nature of the relation between the wife and Nella at the consultation meeting, at para 70, and even if he was, it was not sufficient grounds for removal, at para 78
[3] At para 23.
[4] MacDonald Estate v. Martin, [1990] 3 SCR 1235; cited to QL, [1990] 3 SCR 1235, at para 45 [MacDonald Estate"].
[5] My emphasis, at para 29,  citing MacDonald Estate, supra note 4 at para. 46
[6] Such as, at paras 30 and 35, the SCC decision in Canadian National Railway Co v McKercher, 2013 SCC 39 (CanLII) (“McKercher”).
[7] Supra note 1 at para 41.
[8] Ibid at paras 62, 72, 84, 87, 88 - 89
[9] Ibid at para 90.
[10] Ibid at para 93, citing McLachlin CJ at para 23 of McKercher, supra note 4 .
[11] Ibid citing, at para 101, Cromwell JA’s remarks at para 51 of  Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII) (“Brookville Carriers”).
[12] Ibid, at paras 104 – 105.
[13] Rules of Professional Conduct, [Rules] at 3.4-1.
[14] Ibid, at 3.4-1 & Commentary [4].
[15] Supra note 1, at para 27.
[16] Ibid, at para 55.
[17] Ibid, at para 88.
[18] Ibid, para 115.
[19] Supra note 13 at 3.3-6
[20] Supra  note 1, para 92 – 93. Based on CJ McLachlin’s comments in McKercher at para 23.
[21] Ibid, para 102.
[22] Ibid, paras 108 to 110.
[23] The Court does reference McKercher, supra note 4, at para 108.
[24] Supra, 3.2-2 and commentary in Rules, at note 13.

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