When I meet with clients for the first time, I tell them about confidentiality. The moment the client opens his mouth, I explain, I lose the right to act for his adversaries. And most likely, that moment occurs even earlier: when the client walks through the door of my office or even schedules an appointment with me. Sometimes, I tell about an episode of The Sopranos where the mob boss saw every good divorce lawyer in town to conflict them out from representing his wife. This confidentiality burden is a good reason why lawyers charge for initial consultations (criminal or personal injury lawyers don’t because they usually never act for the Crown or insurance companies).
A recent case of a former unmarried couple’s battle in family court over their child is a good example of the importance of confidentiality (M.S.K. v. T.L.T., 2011 ONSC 5478 (CanLII)). It’s been a long fight with many motions and court orders since the couple’s separation in 2000. But last Tuesday, on September 20, 2011, Justice Wilson of the Superior Court issued her decision on an issue of confidentiality: she ordered that Lorne Wolfson and his firm be removed as the male party’s lawyer because Wolfson’s clerk worked for the female party’s lawyer before.
The reasons for Justice Wilson’s decision explain the test for conflicting a lawyer out of a case:
1) a previous relationship with the lawyer who is allegedly in a conflict of interest
2) the relationship must be sufficiently related to this case
3) the lawyer fails to prove not receiving any relevant confidential information in the prior case
The lawyer or his firm will be in a conflict of interest even if the relationship above was with the lawyer’s employee.
The purpose of this test is to ensure the public’s confidence in the justice system and in lawyers. The competing factor that the court must consider is the harm that losing a lawyer causes a litigant.
If branches (1) and (2) of the test above are true, the court will presume transfer of confidential information. The lawyer can still prevent the court from conflicting him out if he can prove there was no such transfer. But the lawyer’s burden of proof is heavy. A case called Marinangeli v. Marinangeli shows the weight of this burden: lawyer 1 who used to work for party A joined a firm that acted for party B. The firm erected an “ethical wall” around lawyer 1, and he swore in an affidavit that he didn’t discuss A’s file with anyone at the firm and didn’t even remember the file’s specific details. But lawyer 2 at the firm who acted for B failed to swear his own affidavit. The court found that the burden of the third step in the conflict test was on lawyer 2, and he failed to discharge it.
Justice Wilson found that Wolfson’s clerk had a previous relationship with the female party because the clerk used to work for the female party’s previous lawyer when he represented the woman in the same separation battle. The judge found that the clerk’s past relationship with the female litigant was sufficiently related to the current case. At that point, the judge presumed that the clerk was privy to the woman’s confidential information. Like in Marinangeli, the clerk filed her affidavit, but in contrast to Marinangeli, no ethical wall was erected around her. And Wolfson didn’t file his own affidavit. Not surprisingly, Justice Wilson found that Wolfson failed to discharge the burden of the third step of the test. Since Wolfson’s client didn’t give any evidence of harm he would suffer if the court removed Wolfson, the appearance of the justice system’s integrity sealed the fate of this motion, and Justice Wilson ordered that the law firm representing the male party be removed as his lawyers of record.
Pulat Yunusov is a Toronto litigation lawyer.
Last weekend I had the opportunity to participate in the filming of “Family Matters with Justice Harvey Brownstone,” a new online television show featuring Justice Harvey Brownstone of the Ontario Court of Justice.
Justice Brownstone was the first sitting judge to publish a law book intended for the general public, Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court. Brownstone continues this outreach in the new television series, educating the public on issues like custody and child support.
Between the book and this new show, Brownstone has demonstrated that he is a maverick judge who is a pioneer that is unilaterally changing the public image of the judiciary.
In addition to instructional videos on issues of family law, the show will also feature notable personalities in the area of family conflicts.
Given Justice Brownstone’s charismatic personality, the show is expected to gather a significant audience among the public. Lawyers are also considering it as a tool to educate their clients before entering protracted litigation.
The show was directed by Simon Norton Game and Dani Zaviceanu of IslandFX, and produced by AdviceScene, both of Victoria, B.C. Filming occurred in downtown Toronto, with the assistance of Al Rosen of ARPrompt.com, and sound support by Brian Hanish.
Google’s ad last night attracted quite a bit of attention.
Kenneth Corbin of Internet News said,
For Google, Super Bowl Sunday was something of a departure.
In the third quarter of the game, Google (NASDAQ: GOOG) aired a nearly full-minute ad promoting its search engine, marking one of the few television appearances for the company that rarely advertises and its first spot during a Super Bowl.
Florida divorce attorneys almost make the cut. Is Google trying to tell us something? Is Slate?
h/t Paull Young
A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.
I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.
Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..
Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.
Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.
Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.
However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.
It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.
No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee. And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.
A serious problem with the Ontario justice system that is overshadowed by the legal aid boycott is the enormous segment of the population that does not qualify for legal aid but can’t afford a lawyer. These are the unrepresented.
To understand the scope of the problem, one must appreciate that only those who earn approximately $8,000 a year or less qualify for legal aid. This is a shocking figure. Imagine a single mother with two children earning $16,000 who is embroiled in a bitter custody battle with a physically abusive dead-beat ex. In Ontario, she must pay her own legal bills while supporting herself and her family.
A recent article in the Globe and Mail highlights the efforts by Bay Street heavy-weight Heenan Blaikie to help the unrepresented in high risk communities in Toronto. Qualified candidates receive legal advice free of charge, the cutoff income for a family of four is $75,000 and associates can count their pro bono work as billable hours. This is generous and very commendable. Unfortunately this firm doesn’t have any family or criminal law lawyers, and this is where the need is most accute. None the less, Heenan Blaikie deserves high praise.
I doubt very much that a concerted effort to encourage pro bono work would be sufficient to alleviate the problem. Something larger needs to be done. Various members of the legal community are pushing for reforms, however a broader public awareness of the problem would definitely help to generate the political will necessary to bring about change.
Here is another example of role reversal in families, and how the law reacts to it.
Kirk Makin writes for the Globe and Mail:
A Cambridge, Ont., doctor has been ordered to pay temporary spousal support of $6,000 a month to her ex-husband despite the fact that he assaulted her in 2007 and was ordered out of Canada.
Ontario’s “zero tolerance” policy on domestic violence has come into question following an unusual court case involving an Orangeville-area woman who was charged with assault after joking in emails that she could solve her marital problems with a gun, if only she could get one.
Alison Shaw, 40, was forced out of her home and ordered to stay away from her three children after her estranged husband claimed to have been “frightened” by the online missive, which followed what a judge described as a “one-punch bar fight” over a month earlier in an area Legion hall.
Judge Carole Hallee ruled against Lola last month, saying there wasn’t evidence unmarried partners were being discriminated against, and that to recognize all couples in a relationship of permanence as “married” would deny people the choice not to marry.