Q: Our local lawyer has done land deals for my family, has been involved in my business and handled my parents’ estates. Now he is representing my wife in our divorce. I don’t think he should do this and asked him to step down, but he refuses. Can he represent her?
A: This involves the complicated concept of conflict of interest for lawyers.
The basic rule is that you cannot act directly against a former client in the same matter or a related matter. If you had hired him to do your divorce, then fired him partway through, he could not subsequently represent your wife in the same matter. That’s an easy-to-follow rule.
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In some circumstances it is possible for a lawyer to act against a former client, as long as the two cases are totally unrelated. A lawyer also cannot act in a situation where, due to that previous representation, he might have some inside knowledge about facts that bear upon your divorce.
The Supreme Court has said there is a presumption that once he or she has represented you, that lawyer has come into possession of confidential information that bears upon the new case. It is up to the lawyer to show this isn’t so. Sometimes even that isn’t enough. If a reasonable onlooker would even think that he has such information, he may be taken off the file.
In your situation, because your wife’s lawyer used to represent you (or both of you; it isn’t clear) the law presumes the lawyer has confidential information. Because he dealt with your business and your parents’ estates, it is safe to assume this information has a bearing on your divorce proceedings. If you wish to challenge this lawyer and remove him from the file it is he who will have to show the court that he doesn’t have any such information.
More recently, the Supreme Court has rendered a judgment that dealt with the concept of client-lawyer loyalty. This is another factor that must be examined. Looking at the entire history of this lawyer’s dealings with you, a judge will consider whether it is reasonable that you’d expect his loyalty and that he would not act against you in a new matter.
You must know that each case depends upon its unique facts. There is no “one sizefits all” in how these rules are applied. Factual differences bring about different results.
To challenge the lawyer and remove him from the file, you have some options. You can write to your provincial law society with a complaint. This will probably generate an ethics ruling for the lawyer to follow. As an alternative, or if the lawyer doesn’t follow the ethics ruling, you can apply to the court to have him removed from the case. A judge will decide and that decision is binding unless appealed.
Conflicts are serious matters. Balanced against removing this lawyer will be the rule that ordinarily, a litigant is entitled to use counsel of his or her choice. Judges do not lightly remove lawyers from cases. Most lawyers take these ethical obligations seriously and will usually self-assess the allegation.
Your best bet is to contact the provincial law society where you live to obtain advice. Find your records from matters this lawyer has dealt with. As with all legal matters, preparation is the key to success.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
