Case Management - How to Make It Work for Your and Your
Clients
Principles of
Civility
Master M.J. Nolan
Presented at “Tips to Make You Successful”, a continuing legal education
program of the Essex Law Association, December 9, 2004.
INTRODUCTION
- Case management is the supervision or management by the court of the time
and events of the case as it moves through the court system from the time it is
either commenced or defended to disposition, whether that disposition is by
trial, settlement or otherwise.
- Two of the goals of case management are to make the progress of the case
through the system more predictable for the litigants and to avoid backlog for
the court.
- By managing the time between steps in a proceeding so that the occurrence of
the scheduled activity becomes predictable and certain, the court encourages the
timely preparation of cases, increasing the possibility of an early and fair
disposition.
- Every case management system must establish time intervals long enough to
allow adequate preparation but short enough to encourage the preparation.
- Case management, however, is strictly a management process. It should never
directly impact upon the adjudication of substantial or procedural issues of the
litigation. The resolution of each case on its legal merits is never
compromised by an effective case management system.
- The challenge of any case management system is to provide enough consistency
to create certainty and at the same time sufficient flexibility to deal justly
with individual cases.
- Case management allows you to predict with much more certainty for your
clients when their legal matter will be over. Clients always want to know “how
long will it take and how much will it cost.”
- Rule 77, which came into effect in Essex in January 1, 2003, is designed to
accomplish those goals.
TIPS FOR MAKING CASE MANAGEMENT WORK
- Know your case
Effective case management requires that
you assess the merits of your case early. Determine the length of time you
think it will require to obtain the results your client expects. Use case
management to demonstrate your efficiency and effectiveness as counsel. Use
case management to make litigation more predictable. Are there likely to be any
related or companion actions? Have all necessary parties been named? Have
damages matured?
- Join all related and companion actions simply and
quickly
Once all related and companion actions are identified, a
case conference can be conducted and an order made that they will be heard
together or one after the other. The cases can be timetabled in harmony with
one another. This will reduce the delay and expense of multiple actions.
- Consider using the case conference rather then a motion to obtain
procedural orders on consent
The jurisdiction of a case management
judge or case management master at a case conference allows for the granting of
orders that would only be available on motion in the absence of rule 77.
- Schedule and timetable motions
At a case conference you
can book a long motion and timetable the preparation to ensure readiness. The
delivery of motion materials, dates for cross-examinations on affidavits and
filing of facta and books of authorities can be set in an order, ensuring that
the motion will proceed on the scheduled date.
- Ask for a case management conference early
This will
bring counsel together at an early stage to discuss the case and explore
opportunities for resolution. Make sure you and the court know what you want to
accomplish. It allows for the development of a timetable that meets the needs
of you and your client.
- Prepare a draft timetable in advance
Counsel should set
their own timetable in accordance with the needs of the case and the realistic
assessment of how long certain steps will take. The setting of dates in a
timetable that are unachievable because of conflicting schedules will only
result in further delay.
- Bring your calendar to the case conference
Maximize the
utility of the case conference by using it as an opportunity to schedule
meetings, discoveries, motions and other events that require the coordination of
counsel and parties. Leave the case conference with defined discovery dates as
well as a date for the settlement conference. Consider the complexities of the
case in determining how long you require for a settlement conference.
- Conduct case conferences by telephone
Save time and
expense by conducting case conferences by telephone, where appropriate.
- Remember the rules of civility
One of the purposes of
any kind of conference is to settle issues that can be resolved at that point.
The purpose of a settlement conference is to make a genuine attempt at settling
the case. Respect between counsel goes a long way in maintaining an atmosphere
that focuses on settlement. Save the adversarial posturing for trial.
- Prepare your clients for participation in a case
conference
It is the responsibility of counsel to ensure that their
client behaves respectfully at the conference. A case conference or settlement
conference is not an opportunity for the litigants to continue to battle. The
behaviour of counsel set the tone.
- Prepare your settlement conference briefs on time and in accordance
with rule 77.14(6)
The person conducting the settlement conference
is in a better position to give an appropriate view of the likely outcome of the
trial if all of the information is available. Summary of witness statements and
relevant excerpts from transcripts and expert reports are essential at a
settlement conference.
- Prepare your client for settlement at the settlement
conference
Remember that there are options for settlement at a trial
that will not be available at trial. Often the outcome of a trial is simply
“win or lose”. Each party will have evidence to support his or her respective
position but often the evidence in a trial is not what the lawyer or litigants
expect it will be. The last opportunity to control the outcome of litigation is
prior to the commencement of the trial.
- Make sure your client understands the costs of
litigation
In a system of where “loser pays”, litigants often find
it easier to understand that this concept means that they will have to pay you
and the opposing party’s lawyer if they lose.
- Consider signing partial minute settlement on issues of which you
can agree
Reaching settlement on some issues encourages resolution
of the other issues.
- Remember that a completed file is an asset and an open file is
liability
Most litigation counsel do not get paid until the matter
is completed. There is no better advertisement for your skills then to have
your former clients tell others how efficiently and effectively you handled
their case. Expectations increase with the passage of time. Settling a case
for $75,000 a year after the matter commenced is usually more palatable to a
litigant than the same amount six years later.
Helpful references:
Case Management: An Updated
Review of the Transition in Essex County
Ryan Huggett, December
2003
Civility As A Strategy in Litigation
Eugene Meehan, August
2003
Surviving Your "Junioring" Years
David J. Levy*
Being an associate is not easy, particularly in your first year or two of
practice. Law School and the Bar Admission Course provide you with limited
preparation, expectations are high and the demands are great. While the
learning curve is steep, and some growing pains are inevitable, the following
guidelines should make your experience more enjoyable and more successful.
1. Work Hard
This surely goes without saying, but hard work is the cornerstone of any
associate’s success. Do not think you are doing anything particularly novel if
you work evenings and weekends. While the quality of your work is surely more
important than the quantity (see number 3 below), the number of hours worked
will never be overlooked by your employer.
2. Take Initiative
Sitting back, doing only what is asked of you and generally “flying under the
radar” may help you manage your time, but it is not going to advance your
career. You need to take some initiative to get the experience you’ll need to
be successful in future years. For example, in a litigation practice, you may
research the law for a motion, prepare an Affidavit of Documents before a
discovery, or draft a pre-trial or mediation memorandum. You will doubtless be
familiar with the file, but this knowledge is somewhat wasted if you do not also
attend on the motion, discovery, mediation or pre-trial. While your supervising
lawyer should try to get you involved in these events, he or she will not always
think of it, and it is up to you to ask. Sometimes it won’t be possible due to
scheduling conflicts, other commitments, etc., but take every opportunity to
assist more experienced counsel at significant file events. You may be able to
do something substantive, or your role may be strictly as a spectator. Either
way, you will benefit from experiencing the “big picture”, and you will be
better prepared to handle these events on your own when the time comes.
3. Stress Quality Over Quantity
As a junior lawyer, it will take you longer than a more experienced colleague
to complete any given task. Accept that fact, recognize that it will mean that
you will be putting in more hours than your more experienced colleagues (see
number 1 above), and ensure that the work you do is of good quality regardless
of how long it takes. If your supervising lawyer has a choice of you spending
two hours on a task and performing it well, or spending one hour and having it
full of errors and in need of major revision, which do you think he or she will
prefer?
4. Be Realistic About What You Can Achieve
While initiative is good, it is also important to be realistic. You always
want to appear eager to help, and never want to say “no” for fear of appearing
lazy, unmotivated, etc. However, if you are taking on work that you cannot
complete, you are ultimately doing a disservice to both the firm and
yourself.
5. Move Your Cases Forward
This point cannot be overemphasized. It is easy to keep busy, but there is a
big difference between doing enough to fill your day, and doing constructive
work that helps push cases forward to conclusion. Remember that clients are
looking for results and they want them quickly. Obviously, depending on the
nature of your practice, it can reasonably take months or even years to achieve
those results, which most clients understand and accept. What is unacceptable,
and often leads to both sub-par results and unhappy clients, is the delay that
could have been avoided. To ensure that your work is being completed in a
timely manner, create and continuously update a file (or assignment) list,
review it regularly, and, most importantly, ensure that every time you work on a
file, you do something constructive to move that file forward. What you want to
avoid is the situation where you review a file and then, for whatever reason,
that file goes back on the shelf without any other action. If you are unsure
about what to do next, ask someone. If you become distracted by another matter,
ensure that you come back to the file in the immediate future, before time
passes and everything must be reviewed again. Not only is it beneficial to your
firm to have cases moved forward, unnecessary delay causes nothing but prejudice
to the client, who will eventually become exasperated, first with the process
and then with you.
6. Be a Team Player
Everyone wants to receive credit, especially in a competitive environment
like a legal practice. But you will do far better in the long run if you are
known as a team player. Don’t look for personal “reward”, go out of your way to
accommodate those you work with, help your colleagues whenever you can, and
always give others credit for their involvement, however small, in an
assignment of yours. Your good work, humility and “team” approach will all be
noticed. On the other hand, your work product may be overshadowed if you develop
a reputation of being interested only in promoting yourself.
7. Accept The “Joe” Jobs With A Smile
As a junior lawyer, you will inevitably get some assignments that have made
their way to you because no one wants them and everyone above you has managed to
avoid them. Its not always fair, and sometimes the product of nothing more than
laziness on the part of more senior counsel, but it is going to happen. Just
keep smiling. The lawyer who assigned you this task probably knows it is a
“dog” (even if he or she won’t admit it) and you will be appreciated for getting
it done. Do these (and your other assignments) well, and soon your superiors
will find someone else to do these unenviable tasks.
8. Do Not Be Afraid To Ask For Help
Your supervising lawyer should have an “open door” policy, and you should
feel welcome to ask questions. Its part of the learning process and helps
ensure that you stay “on track.” There are two caveats. First, you have to be
familiar with the file you are asking about – it is not your superior’s job to
brief you about background matters you could learn on your own. Second, you must
have already made a reasonable effort to find the answer. You will be quite
embarrassed if the answer to your question is easily found in the first place
you should have looked (procedural details found in the Rules of Civil
Procedure are a prime example). If you have done both these things, feel
free to ask.
9. Be Nice To Your Staff
Good office staff is a valuable resource. Good staff makes your practice
easier and more successful, while less worthy staff will have just the opposite
effect. This is particularly true for junior lawyers who will benefit from the
experience of secretaries and law clerks, some of whom have been in the industry
for many years. Most junior lawyers have never had staff working for them
before, and there can be a tendency to treat staff as subservient, or otherwise
with a lack of respect. This is a serious mistake! Consider your staff to be
valuable members of your team and treat them accordingly. You will find that
the quality of their work will be higher, and their motivation to help you
during those inevitable emergencies will be greater. Treat your staff with
disdain, and … you can figure out the rest.
10. Confront Your Mistakes and Accept Constructive
Criticism
While nobody wants to make a mistake, it is going to happen. None of us is
perfect. When something has gone wrong, whether the error is big or small, deal
with it immediately! Do not bury the problem and hope that it will go away. It
won’t. If you confront the mistake immediately, there may still be a way to fix
or at least minimize the problem. By trying to hide from it, you can rest
assured that when you are ultimately required to confront the issue (and you
will be) the problem will be much greater. Your delay may even prejudice your
insurance coverage in some situations.
One of the inevitable consequences of making an error is that you will
receive criticism, hopefully of the constructive variety. Listen to what you
are being told, and learn what is expected of you so you can avoid making the
same mistake again. As long as your error was not the result of laziness or
total carelessness, don’t be embarrassed or focus on it endlessly. Your
superiors made plenty of mistakes too, perhaps the same ones you have made.
Above all else, don’t argue or get defensive – accept the fact that you made a
mistake, fix it (if you can) and move on.
11. Keep Learning
Whatever you practice area, the law is complex and constantly developing.
Make sure that you take the time to read the legal literature available to you,
which should always include your Ontario Reports, weekly and monthly newspapers
and magazines, and seminar materials relevant to your area of practice. It is
your obligation to keep up to date on changes in the law, and you will be very
happy to avoid uncomfortable situations that can arise from not doing so.
* David J. Levy, Howie, Sacks & Henry LLP, Toronto.
Managing the Security and Privacy of Electronic Data in a
Law Office
Daniel E. Pinnington*
Computers and the Internet have transformed the practice of law, and how
lawyers handle confidential client information. Where once paper documents were
the norm, today clients, lawyers, and law office staff routinely work with
electronic documents and data. Protecting the security and confidentiality of
that information, however, is as important today as ever: Both the Rules of
Professional Conduct and the Personal Information Protection and
Electronic Documents Act (PIPEDA) apply equally to paper-based files and to
electronic documents, such as a computer files or e-mail messages.
A failure to take appropriate steps to protect the electronic data in your
office could have disastrous consequences. This could include an embarrassing
release of sensitive information, a malpractice claim, a complaint to the Law
Society, or the theft of your personal identity. At the very least, the theft,
loss, or destruction of client or practice-related data will be disruptive to
you and your practice. In the extreme case, it could cause your practice to
fail.
From a best practices point of view, there are thirteen steps that you should
systematically take to protect the electronic data in your firm against the most
common threats. More detail on each of these steps is provided in the remainder
of the practicePRO booklet referenced at the end of the article.
#1 Install latest updates to eliminate security vulnerabilities: The
networking functionality built into software that allows the Internet to operate
can create security vulnerabilities that in turn can allow computers to be
compromised by hackers. Microsoft products are particularly vulnerable. You must
protect yourself by installing the latest security patches and updates.
#2 Make full and proper use of passwords: We all have more passwords than we
can remember, and as a result, we get lazy and use obvious ones, or we don’t use
them at all. You must use passwords, and use them properly to keep your data
safe.
#3 Antivirus software is essential: Computer viruses are a fact of life.
Every computer in every law office should have antivirus software on it, and
this software needs to be frequently updated, at least weekly. Make sure you
understand how to properly use and configure your antivirus software.
#4 Avoid spyware and adware: Viruses used to be the only threat that you had
to worry about. Now you need to be aware of several other malicious software
threats, including some that will spy on you. Odds are they are already on your
computer. You need to take steps to make sure no one is watching your surfing
habits, or collecting personal or client information from your computer.
#5 Install a firewall on your Internet connection: When you are connected to
the Internet, the Internet is connected to you. Information can flow freely both
ways across your Internet connection. You need a firewall to act as a gatekeeper
to prevent unauthorized access to your computers and network.
#6 Be aware of and avoid the dangers of e-mail: E-mail is an essential
communications tool in most law offices, but it is also one of the most
dangerous tools. E-mail is one of the most common ways that viruses will enter
your office, causing breaches of confidentiality and other serious problems. You
and your staff must appreciate the dangers of e-mail, and know how to use it
safely.
#7 Beware the dangers of metadata: Are you unwittingly sending confidential
information to clients or opposing counsel? If you have e-mailed a Microsoft
Word or Corel WordPerfect document to either, the answer to this question is
likely yes, and you need to learn more about metadata.
#8 Lockdown and protect your data, wherever it is: Electronic client data is
everywhere, both inside your office (on servers and desktop computers), and
outside your office (in e-mails, on laptop computers, cell phones, and PDAs).
People can access data across networks and even across the Internet. You need to
understand who has access to your data, and how to limit or prevent access to
it.
#9 Harden your wireless connections: Connecting to the Internet with wireless
technology is so easy and seductive. However, if not configured properly,
wireless can give hackers easy and unimpeded access to the data on your computer
and network. Wireless users beware!
#10 Learn how to safely surf the Web: The Internet browser is another one of
the more dangerous tools in your office. Even casual surfing on the Web can
expose you to viruses and worms, and divulge personal data. You and your staff
need to know how to safely surf the Web.
#11 Change key default settings: Every computer program and every piece of
hardware has certain preset or default settings. These are necessary to make
them operate out of the box. However, default settings are common knowledge, and
hackers can use them to compromise a computer or network. You can make your
systems much safer by changing some key default settings.
#12 Implement a technology use policy: Everyone using law office technology
must understand basic do’s and don’ts, and where the dangers are. Every law
office should have a basic technology-use policy that clearly informs all staff
of what they can and can’t do while using e-mail, surfing the Web, and using
other law office systems.
#13 A backup can save your practice: You hope and pray it never happens to
you, and you will take all of the above steps to reduce the likelihood of a
malware infection or hacker attack, but if your system is ever compromised,
nothing will be more valuable to you and your practice than a full backup of
your critical practice and client data.
The Managing the security and privacy of electronic data in a law office
booklet provides a comprehensive review of the thirteen steps outlines above.
It is available for download in Acrobat PDF format (248KB) at www.practicepro.ca/securitybooklet.
* Daniel E. Pinnington (dan.pinnington@lawpro.ca) is the
Director of practicePRO (www.practicepro.ca), the risk
management and claims prevention initiative of the Lawyers’ Professional
Indemnity Company (LAWPRO® - www.LAWPRO.ca).
Watch Your Partners
3464920 Canada v Strother
James C. Morton*
A recent decision from the British Columbia Court of Appeal (Strother
[2005] BCJ No. 80) emphasizes how important it is to ensure that law firms
keep a close track on what their partners are doing. Potential damages as much
as $32,000,000 may be available against one of Western Canada’s oldest and
largest legal firms because of actions by a former partner who acted in a
conflict of interest to his client. It should be noted that these damages, if
recovered, would likely be outside of insurance coverage.
Specifically, as a tax partner of the firm, the solicitor advised the client
that changes in tax rules rendered the client’s film production tax shelter
operation no longer viable. As a result, the client shut down its film
production tax shelter business. The client continued to do work with the
solicitor, however, the solicitor learned of a way around the changes in the tax
rules that would allow a film production tax shelter business to operate and be
profitable. The solicitor, together with a former employee of the client, set up
a new business (which he kept secret from the client) operating in the film
production tax shelter area.
The knowledge of the solicitor’s law firm with regard to the secret business
was not particularly clear although it appears that the solicitor took some
efforts to keep the full scope of his business interests secret from his law
firm.
The conflict between the solicitor and the client is obvious. The Court had
little difficulty disposing of arguments that the solicitor was not in conflict.
The Court notes:
¶¶ 4 Both conflicts arose no later than January 30, 1998 when the lawyer
prepared and entered into a written contract on his own account with the former
employee of Monarch. In it, he agreed that his law firm would form certain new
corporations and limited partnerships and provide the services necessary to seek
an advance tax ruling for the "new idea" the two developed for TAPSF
syndications. (Although the lawyer deposed prior to trial that no draft of the
ruling request was attached as a schedule to the agreement, he testified at
trial that it was.) If the ruling could not be obtained, there would be no
charge for the firm's fees. If the ruling was obtained, the firm would be
retained to prepare the necessary offering memorandum and the lawyer would
endeavour to obtain its approval of a fee arrangement based solely on
subscription sales and with no minimum fee. Under clause 6 of the agreement, the
lawyer was to receive 55 per cent of the first $2,000,000 of profits from "the
transaction" and thereafter, 50 per cent.
…
¶¶ 6 From the time he entered into this agreement, the lawyer could not meet
the duty of loyalty of every lawyer to his client. In Ramrakha v. Zinner (1994)
157 A.R. 279 (Alta. C.A.), Harradence J.A. described the duty as follows:
A solicitor is in a fiduciary relationship to his client and must avoid
situations where he has, or potentially may, develop a conflict of interests: .
. . . The logic behind this is cogent in that a solicitor must be able to
provide his client with complete and undivided loyalty, dedication, full
disclosure, and good faith, all of which may be jeopardized if more than one
interest is represented. [para. 73; emphasis added.]
(I emphasize the phrase "where he has, or potentially may develop" to
make the point that even if the agreement, properly construed, had given the
lawyer an option to acquire an interest, as opposed to an immediate entitlement,
the conflict would arise immediately.)
The law firm was not advised of the new business directly, however,
at some point (paragraph 30) rumours started moving through the law firm and the
solicitor gave the law firm a less than fully candid description of what was
going on. Nevertheless, the law firm was probably on notice that there was some
possible conflict and (perhaps) they should have investigated further.
In any event, the Court of Appeal asked for further submissions with
regard to the law firm’s potential liability noting, however, "that the personal
innocence of a person vicariously liable for the wrongful act of his partner was
not relevant for the purpose of determining contribution proceedings between
that person and another wrongdoer, even in cases of dishonesty." (Para. 93) The
relevant sections of the case respecting the law firm’s potential liability are
set out below. The key point, however, is that the law firm is exposed to a vast
liability which would not appear to be covered by professional negligence
insurance as a result of the wrongful (and quasi secret) actions of one partner.
Law firms, accordingly, are put on notice of the need to keep track of what all
their partners are doing.
The relevant sections of the decision are as follows:
¶¶ 87 I come next to Monarch's assertion that the Davis law firm is
jointly and severally liable with Mr. Strother, a former partner, for his breach
of fiduciary duty. I begin by noting that in its Statement of Claim, Monarch
made many of the allegations against Mr. Strother against Davis as well,
including the allegation at para. 108 that Mr. Strother and his firm had had an
obligation to advise Monarch "of the facts of the errors in the 97/98 advice and
to recommend that Monarch seek independent legal advice, but, in further breach
of their duties and obligations to Monarch, failed or neglected to do so." As
well, Monarch pleaded at para. 114 that Mr. Strother was at all relevant times a
partner of Davis and knew or ought to have known of his conduct in connection
with the "new structure". At paras. 124-125, Monarch sought the return of legal
fees it had paid Davis, and at paras. 122 and 126 and in its prayer for relief,
it sought various equitable remedies as well as damages, including punitive,
exemplary and aggravated damages against all defendants.
¶¶ 88 It is apparent from the transcripts that Davis defended
Monarch's claims on the merits. On appeal, Davis's factum again speaks to the
merits. Nevertheless, Mr. Nathanson in his oral submission raised an objection
to the effect that Monarch had not pleaded vicarious liability and therefore
could not at this late date seek to hold Davis liable for anything more than
whatever profits or benefits the firm had received as a result of any breach of
duty by Mr. Strother. In other words, the law firm could not, because of an
alleged deficiency in Monarch's pleadings, be ordered along with Mr. Strother to
account to Monarch for profits wrongfully received by Mr. Strother in the event
of a breach of duty on his part.
¶¶ 89 With respect, this argument overlooks the purpose of pleadings
- to state generally the material facts relied upon together with the relief
sought - and wrongly assumes that conclusions of law are required to be stated.
No authority was cited for Davis's argument, and as Ms. Basham noted in reply,
the Statement of Claim alleges that Mr. Strother was at all relevant times a
partner of Davis. The firm cannot claim to be taken by surprise by the assertion
of joint and several liability for Mr. Strother's breach. In these
circumstances, I would decline to dismiss Monarch's claim of vicarious liability
on Davis's part based on this "pleadings" argument.
¶¶ 90 Monarch relies on the joint and several liability of partners
for wrongful acts of their partners. Although Ms. Basham did not refer to it,
this principle is of course codified by ss. 12 and 14 of the Partnership Act,
R.S.B.C. 1996, c. 348:
12 If, by any wrongful act or omission of any partner acting in the
ordinary course of the business of the firm or with the authority of his or her
partners, loss or injury is caused to any person who is not a partner in the
firm or any penalty is incurred, the firm is liable for that loss, injury or
penalty to the same extent as the partner so acting or omitting to act.
* * *
14 A partner is jointly and severally liable with his or her partners
for everything for which the firm, while he or she is a partner in it, becomes
liable under either section 12 or 13.
(See also R.C. l'Anson Banks, Lindley & Banks on Partnership
(18th ed., 2002), at 334-342.)
¶¶ 91 It does not necessarily follow, however, that Davis is liable
jointly and severally with, or in the shoes of, Mr. Strother for all the profits
for which he must account to Monarch. Several questions arise. Is Monarch in
fact asserting liability under the Partnership Act, or seeking only an equitable
remedy against Davis? If the former, can it be said Mr. Strother was "acting in
the ordinary course of the business of the firm or with the authority of [his]
partners" when his breach of duty was committed? Can the firm be liable for
profits he earned after he left the partnership? Can the firm be liable to
disgorge profits Mr. Strother received, but which Davis did not? Does an
accounting for profits come within the ambit of liability under s. 12? Does the
fact that many or all the partners of Davis were not informed of, or aware of
Mr. Strother's personal conflict of interest, affect their position? And, if the
state of knowledge of the other partners of Davis is relevant, were any of those
partners aware that Mr. Strother was breaching his duty to Monarch, or - perhaps
more importantly - should any or all of them have been put on inquiry? Looked at
from a greater distance, do the equitable underpinnings of ss. 12 and 14 mean
that the new "flexibility" of equitable remedies applies here as well? Last, do
the principles explored in Citadel General, supra, have any effect on the
vicarious liability of partners (under the Act or otherwise)?
¶¶ 92 Unfortunately, we did not receive argument on these questions.
I have therefore reluctantly come to the conclusion that we must request
argument (which would be in writing unless any counsel wishes to make oral
submissions) from counsel for Monarch and Davis on the foregoing issues and any
other arguments counsel deem to be relevant to the question of the firm's
possible liability. (Counsel for the other parties may also make submissions if
they wish.) It may be that once we have received such argument, we will find it
necessary to remit this part of the appeal back to the trial court so that any
necessary findings of fact may be made; but on the other hand, that may turn out
to be unnecessary in law. I would hope that any submissions will be made or
filed within the next two months or so.
¶¶ 93 I do bring to counsel's attention the recent decision of the
House of Lords in Dubai Aluminium Co. Ltd. v. Salaam [2003] 1 All E.R. 97, which
confirmed that in s. 10 of the 1890 Partnership Act (U.K.), the wording of which
is almost identical to the wording of our s. 12, the phrase "wrongful act or
omission" is not limited to common law torts but may include a lawyer's breach
of fiduciary duty. (The disgorgement of profits was not at issue, however.)
Their Lordships also concluded that, to quote from the headnote, the "personal
innocence of a person vicariously liable for the wrongful act of his . . .
partner was not relevant for the purpose of determining contribution proceedings
between that person and another wrongdoer, even in cases of dishonesty." Counsel
will no doubt make of this case what they will.
* James C. Morton, Steinberg Morton Frymer.
Conflict of Interest
Jonathan Speigel*
Since the advent of the Supreme Court of Canada decision in MacDonald
Estate v. Martin [1990] 3 S.C.R. 1235, litigants have been taking pot-shots
at the solicitors of opposing parties by arguing that the solicitors ought to be
removed as solicitors of record. In Spagnuolo v. Calderone Shoe Co., a
1998 unreported decision of Case Management Master Polika, the defendant took
this concept to its extreme.
Rationale
The court will remove a lawyer from a case when it appears that confidential
information given by a client to that lawyer in a matter would be used against
the client in that or another matter. The rationale for this rule is stated as
follows:
"The spectre of a lawyer cross examining a former client on issues of
credibility where the cross examination may be based on confidential information
disclosed in a previous retainer is more than one system of justice can bear.
There would be a very real appearance of professional impropriety through use of
confidential information received from clients being used against
them."
Facts
The facts in the case are convoluted.
- The defendant fires two individuals. They briefly see a solicitor for advice
about wrongful dismissal. Seven months later, the defendant re-hires one
individual as a manager. We do not know what happens to the other individual. It
is irrelevant for purposes of this case.
- Eight more months go by. The manager, on behalf of the defendant, then fires
the plaintiff. The defendant had employed the plaintiff for 7 1/2 years prior to
the termination.
- Who does the plaintiff go to for help? Yep, the original solicitor who had
advised the manager 15 months ago.
- The solicitor commences an action on behalf of the plaintiff against the
defendant for wrongful dismissal.
- The plaintiff chooses an officer of the defendant to examine for discovery.
The defendant requests that the manager be examined instead because he is more
knowledgeable. The plaintiff agrees to the request.
- Prior to the examination taking place, the defendant raises the objection
that since the manager had previously obtained advice from the solicitor 25
months earlier, the solicitor had received confidential information and ought to
be removed as solicitor of record in the action.
Decision
The Master found that the solicitor, in his brief consultation with the
manager, was acting in a matter totally different from that at issue in the
action. He found that the defendant failed to demonstrate that any confidential
information was given to the solicitor by the manager that was germane to the
matters in issue in the action. Finally, he found that it was the defendant who
was relying on the manager as a witness and who, on that basis, sought to force
the plaintiff to retain new counsel and incur additional fees.
The Master dismissed the defendant's motion with costs fixed at
$1,200.00.
* Jonathan Speigel is a partner in Speigel Nichols Fox in Brampton
Ontario. He may be contacted at www.ontlaw.com.
OBA To Host FREE Lawyer Safety
Workshop
WHAT SHOULD I DO?
Evaluating the Risk of Threats Against the Legal
Profession:
Practical Ways to Make You, Your Family,
Friends & Colleagues -- More Secure
Saturday, May 28th, 2005
9 a.m. to 12:00 p.m.
OBA Conference Centre Suite 200 – 20 Toronto Street
Safety
First!
Workshop Leaders:
John McMunagle, Chair,
OBA Task Force on Lawyer Safety
Nick Migliore, BA, MBA,
CFE, Security Expert
Stephen Irwin, Detective Sergeant
Intelligence Support, Toronto Police Service
Murray
MacDonald, Director, Crown Attorneys, Ministry of the Attorney General
Paul Vesa, Acting President, Ontario Crown Attorneys’
Association and OBA Executive-at-Large
The Honourable Mr. Justice
Richard Gates , Superior Court of Justice
Please visit www.oba.org for
more information and to register for this free (for members)
seminar.
Publications
Publications:
| Title |
Date |
Interest Area |
Format
Available |
| Strategic
Legal Writing |
5/31/2005 |
Sole, Small Firm and General Practice |
Binder |
Download |
| Operation
Update 2004 |
10/1/2004 |
Sole, Small Firm and General Practice |
Binder |
Download |
| You've
Got the Whole World in your Hands:Using the Internet to Expand the Boundaries of
Legal Research |
5/26/2004 |
Sole, Small Firm and General Practice |
Binder |
|
| Strategic
Legal Writing: Preparing Persuasive Documents. |
4/21/2004 |
Sole, Small Firm and General Practice |
Binder |
|
| Ethics
Of Tactics Over Merits |
11/24/2003 |
Sole, Small Firm and General Practice |
Binder |
|
| Operating
a Contingency Practice |
11/14/2003 |
Sole, Small Firm and General Practice |
Binder |
|
| Operation
Update 2003 |
10/3/2003 |
Sole, Small Firm and General Practice |
Binder |
|
| How to
Research Your Way Out of a Paper Bag: Research Tips for Corporate and Litigation
Lawyers |
5/29/2003 |
Sole, Small Firm and General Practice |
Binder |
|
| Operation
Update 2002 |
9/20/2002 |
Sole, Small Firm and General Practice |
Binder |
|
| How Do
I Find That? Internet Legal Research |
5/23/2002 |
Sole, Small Firm and General Practice |
Binder |
|
| Operation
Update 2001 |
9/21/2001 |
Sole, Small Firm and General Practice |
Binder |
|
| Operation
Update 2000 |
9/22/2000 |
Sole, Small Firm and General Practice |
Binder |
|
| Precedent
Bound: Tips and Traps of Specialty Drafting for Generalists |
6/15/2000 |
Sole, Small Firm and General Practice |
Binder |
|
Multimedia Products:
Section Executive 2004-2005
Chair: Bonnie G. Patrick
Goulin & Patrick (519)
258-8073
goulinpa@wincom.net
Vice-Chair: Daniel Edward Pinnington
LawPRO (416)
598-5863
dan.pinnington@lawpro.ca
Secretary (Sections): Dawn M. Melville
Ballance &
Melville (519) 255-1414
dawnmelville@bellnet.ca
Newsletter Editor: Joseph Charles McCallum
Heelis,
Williams, Little & Almas LLP (905) 687-8200
jmccallum@14churchstlawoffice.com
CLE Liaison: Sharon L. Murphy
Marley and Burrows
Associates (519) 252-2255
lawgirl59@hotmail.com
Technology Liaison: Daniel Edward Pinnington
LawPRO (416)
598-5863
dan.pinnington@lawpro.ca
Member-At-Large: Daniel J. Murphy, Q.C.
Donnelly &
Murphy (519) 524-2154
dmurphy@dmlaw.on.ca
Staff Liaison: Peter Guennel
Ontario Bar Association
(416) 869-1047 x340
pguennel@oba.org
|
