Removal of Lawyer for Reasons of Conflict

There was a recent and unusual case that I felt worth commenting on. This was a child protection case. The lawyer initially represented the Society. Later on, he represented the father. The Society asked for his removal for various reasons. The Court, after analyzing the law and circumstances in this area, agreed and remove the lawyer as the father’s lawyer.

The case is R.F. v. Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366 (CanLII) with Wolfe, J presiding.

Inherent right of the Court to remove the lawyer:

The society’s motion to remove the applicant’s lawyer is not brought pursuant to any statute or rule. The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” (See Windsor-Essex Children’s Aid Society v. B.D., 2013 ONCJ 43 (CanLII) at para. 14).

Test for removal of lawyer:

[16]        The test that the courts have developed for determining if counsel should be removed is outlined in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, as whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.

[17]        Justice Tobin in Windsor-Essex Children’s Aid Society v. B.D. noted at para. 13 that the threshold for court intervention should be high:

A court should not lightly prevent a litigant from choosing counsel.  See Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.) at para. 19.  It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases.  See Judson v. Mitchele, 2011 ONSC 6004 (CanLII), [2011] O.J. No. 4914 (Ont. S.C.J.) at para. 23.

[18]        In R.(C.) v Children’s Aid Society of Hamilton (2004), 2004 CanLII 34407 (ON SC), 4 R.F.L. (6th) 98 (Ont. S.C.J.), the court stated at para. 34: The standard for the removal of counsel is an objective one, which is that of a reasonably informed member of the public. The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.

[19]        When balancing the competing values of the right of litigants not to be lightly deprived of counsel of their choice and maintaining the integrity of the administration of justice, the predominant consideration is, and must be, the integrity of the justice system.  See MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, per Justice Cory in his concurring decision, and Kam v. Hermanstyne, 2011 ONCJ 101 (CanLII), [2011] O.J. No. 1019 (Ont. C.J) at para. 11.

[20]        Given this overriding principle, in order to make a determination about whether the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur, a court must first decide whether confidential information attributable to the solicitor client relationship was received that would be relevant to the matter now before the court. In MacDonald Estate v. Martin, the court noted:

Once it is shown by the client 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 unless the solicitor satisfies the court that no information was imparted which could be relevant. (emphasis added)

However, evidence can be used to rebut this presumption (MacDonald Estate v. Martin).

[21]        Second, the court must decide if this confidential information will be misused or, put another way, whether the lawyer’s duties to either client – past or present – would be compromised as a result. The result of a finding in the affirmative would undermine the public’s faith in the legal profession and in the integrity of the justice system itself.

[22]        This is particularly significant when one considers, as was raised by Mr. Parisé, the historic and negative relationship between Indigenous peoples and the justice system, which includes the legal profession. In fact, in response to this reality, the Law Society of Ontario (LSO), whose mandate is the regulation of the legal profession in Ontario to ensure that the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct, as well as to protect the public interest, to maintain and advance the cause of justice and the rule of law, and to facilitate access to justice for the people of Ontario, has formerly recognized that First Nation, Métis and Inuit peoples face unique access to justice challenges. The decision to remove counsel against the wishes of a client is always a difficult one reserved for the clearest of cases, but where an Indigenous litigant has a trusting relationship with their lawyer, as is the case here, it makes the analysis even more complex. That said, the courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

Court’s decision

I am not satisfied that Mr. Parisé has rebutted the presumption that he would have been privy to confidential information about his former client, the file itself, and the other parties. His involvement was not peripheral and in fact, he was counsel of record for the society and on the specific orders of consequence to the new proceedings. This includes the original Customary Care Agreement which Mr. F., KGCFS, Wiikwemkoong and both parents were party to, as well as the Order to terminate Crown Wardship. Both would have required that he have access to confidential information.

The information that Mr. Parisé was necessarily privy to included confidential information about the parties now engaged in the current proceedings, and there exists a very real risk that it could be used to prejudice his former client, KGCFS, as well as other parties. As a result, I find that the nature of Mr. Parisé’s retainer with KGCFS which required him to act for the agency on the file relating to N.J. puts him in a position of conflict in relation to his retainer with Mr. F. He will have acted on both sides of a child protection file, and on particular issues of consequence that are currently before the court.

Analysis:

Often, lawyers meet clients for an initial client consultation meeting – nothing confidential is discussed. Yet, it is a question of perception. What is the perception of the client who met you for those few minutes? If the perception is that there was something confidential shared, then, there is a problem. You cannot then represent the opposing side because there would clearly be a conflict. I am sharing this case to highlight to readers how difficult it is for a decision for a lawyer and for clients to decide on issues that are right on the border – was there anything confidential said or not?

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