As lawyers, we always have to consider whether we can act for someone before we are retained. Often, the question of whether we are in a conflict is a simple one; however, occasionally, it is more difficult to assess whether we can or more importantly, should, act for someone.
In a recent case, a Plaintiff moved to remove counsel for the Defendant due to a perceived conflict of interest (Gloger v Evans 2018 ONSC 4919).
Otillie and Jochen Gloger, whose children are the parties in this action retained a law firm, to prepare their Wills. Otillie died first and Jochen retained the law firm to prepare a survivorship application with respect to their joint property.
Jochen’s Will named both the Plaintiff and the Defendant in this matter as the Estate Trustees of his Estate and the Estate was divided equally between the Plaintiff and the Defendant.
In this action, following Jochen’s death, the Plaintiff sought to have the Defendant removed as Estate Trustee based on various allegations such as misappropriation of assets and breach of fiduciary duty.
The Defendant retained the law firm to represent her in this action. In turn, the Plaintiff alleged that the firm could not represent the Defendant because there were several conflicts of interest and more importantly, such representation would undermine public confidence in the administration of justice.
The Court considered the test set out in MacDonald Estate v Martin (1990) 3 SCR 1235, which requires that two questions be answered:
- Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the matter at hand?
- Is there a risk that it will be used to the prejudice of the client?
Because prejudice is difficult to prove, the “test must be such that the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur…”.
Analysis and Decision
The Court held that, at its best, the Plaintiff’s evidence was that he and the Defendant initially retained the law firm but that, three days later, he retained his own lawyer. The Plaintiff never met with a lawyer at the law firm but he apparently had a telephone call with someone at the law firm while the Defendant listened in. However, he could not advise whom he spoke with, nor what that person’s occupation was. Furthermore, the Plaintiff did not sign a retainer agreement nor did he provide a retainer.
Given this evidence, the Court held that the Plaintiff did not retain the law firm and was therefore not a former client. Even if he was a former client, however, the Plaintiff stated at his cross-examination that he did not provide any confidential information to the law firm.
The Court did not believe that any confidential information provided by the Deceased, with respect to the Will which named both the Plaintiff and the Defendant as the beneficiaries and Estate Trustees of the Estate, was relevant to this action regarding trustee misconduct, given that the Will was not ambiguous, nor was there a challenge to the Will.
In making this decision, the Court also commented on the importance of the right of the client to be represented by counsel of their choice and that a flexible approach must be taken.
In light of the foregoing, the Court did not consider the second step of the test and dismissed the Plaintiff’s motion for the removal of the law firm, as the Defendant’s counsel.
This case reminds us that it is important to consider whether you should act for someone in the circumstances of each individual case. The above-noted test helps one determine whether a potential conflict of interest may arise.
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This is the first time I have ever contributed to a blog, legal or otherwise, so you can imagine my delight when I noticed an article in the June 11, 2010 issue of Lawyers Weekly entitled "Legal blogs that work”.
The article, written by Geoff Kirbyson, discusses the benefits of legal blogging and includes helpful hints on running effective law-blogs.
Mr. Kirbyson points out that legal-blogging has become more common amongst law firms. This assertion comes as no surprise to me. My colleague, Sharon Davis, recently discussed the growing popularity of blogging amongst members of our profession. She noted that blogging is not an alien concept for lawyers as writing has always been a large part of our professional lives. You can find her blog here.
The increased attention given to on-line media makes sense when you consider the number of individuals who rely on social media for their information. A 2009 study by CNW Group and Ledger Marketing found that 50% of those surveyed accessed social media tools once per day.
So, what makes a legal blog effective? A managing partner of a Winnipeg-based firm opined that an effective blog showcases activity at a law firm, highlights developments in particular legal areas, demonstrates a firm’s knowledge and expertise, and enables a firm to engage in client service through social media. This is certainly true.
In my opinion, however, there is one more necessary component to effective legal blogging. In addition to being accurate, relevant, and current, a legal blog should be FUN.
Happy blogging everyone! I know that we’ll talk again soon.
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
Client satisfaction is a tricky maze to navigate. In some ways, we are most successful as lawyers when clients on both sides are equally dissatisfied. The object of the game is to settle on a solution that is fair to all concerned. This necessarily means that no one side is going to get the key to the city and the pot of gold at the end of the rainbow.
That said, we risk great lawyer dissatisfaction if our clients do not refer us to others or come back when the need arises.
In "Three Secrets to Effective Communication" Walter Bristow, a US lawyer who practises estates law (amongst other things) says that to convince people to act or buy a service we need to:
- Involve them by asking questions, not simply tell them the law or what we think;
- Motivate by telling an illustrative story that engages them and evokes their curiosity; and
- Use analogies to turn the abstract into something tangible – he gives an example of how to explain a trust as akin to a warehouse with trustees as security guards
Most people make decisions based on emotion. Advertisers already know this – I’ll bet you’ve seen an ad or two with kittens or babies in them. How, then, do we constructively harness this knowledge with a view to providing client satisfaction and excellent service in the legal industry? At the end of the day, it is not how a client does, but how he or she feels that will determine the level of satisfaction and the number of referrals sent our way. Since clients are usually human, this just might have very little to do with the relative degree of success in court.
So, the next time you get a phone call or e-mail from a client, try responding just a little quicker than usual and make someone’s day!
Sharon Davis – Click here for more information on Sharon Davis.