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"].
[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.
[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.
No comments:
Post a Comment