WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order (c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition on publication of identifying information.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Offence.
A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Windsor Registry No.: 224/02
Date: 2014-12-02
Ontario Court of Justice
Between:
Windsor-Essex Children's Aid Society, Applicant
— AND —
L.H. and V.D., Respondents
Before: Justice Douglas W. Phillips
Heard on: 28 November 2014 and 1 December 2014
Reasons for Judgment released on: 2 December 2014
Counsel
Mark Hurley (Ronald Burnett appearing on motion) — counsel for the applicant society
Sharon Murphy — counsel for the respondent L.H.
No appearance by or on behalf of V.D., even though served with notice
Lisa Labute and Michael Frank — counsel for the Office of the Children's Lawyer, legal representative for the children
JUSTICE D.W. PHILLIPS:
1: INTRODUCTION
[1] Before the court is a motion initiated by the respondent mother first returnable in court on 28 November 2014.
[2] The motion is brought within a pending status review proceeding having to do with four children — namely A.D.H. born on […], 1998; S.L.D., born on […], 2000; H.A.H., born on […], 2001 and M.T.H., born on […], 2001.
[3] The motion seeks an order removing Mark Hurley as counsel of record for the applicant Windsor-Essex Children's Aid Society pursuant to rule 4 of the Family Law Rules.
Identification of Parties and Counsel
[4] The applicant with respect to the outstanding status review proceeding is the Windsor-Essex Children's Aid Society (hereinafter referred to as the "society"). Its counsel of record with respect to this status review proceeding is Mark Hurley.
[5] The mother of the children is L.H. represented by Ms. Sharon Murphy.
[6] There is a male respondent namely V.D.. Mr. V.D. has no counsel. Mr. V.D. did not participate within the motion proceeding.
[7] There are two OCL counsel — namely Ms. Lisa Labute and Mr. Michael Frank.
Status Review Proceeding — Trial
[8] The status review proceeding is on the trial list but has not yet been called.
Brief Court History
[9] The society has had involvement with the respondent mother since in or about 1994. Prior protection findings have been made relating to the children the subject of the current proceeding.
[10] An order was made on 7 October 2002 having to do with the four subject children together with an older sibling namely F.N.H. born on […], 1991. In consequence of the order, the children were found to be in need of protection pursuant to the provisions of clause 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and were placed into the care of respondent mother, subject to supervision of the society for a period of six months, subject to terms and conditions.
[11] In 2002, Mr. Frank Philcox was counsel of record for the respondent mother, in respect of the foregoing protection proceedings. There was a solicitor-and-client relationship between the respondent mother L.H. and Mr. Frank Philcox in relation to the protection proceedings initiated by the Windsor-Essex Children's Aid Society at that time. Mr. Frank Philcox was the respondent mother's counsel of record.
[12] Subsequently an order was made dated 8 July 2003 wherein the children were found to be in continued need of protection pursuant to the provisions of clause 37(2)(b) of the Child and Family Services Act and continued to remain in the care of the respondent mother subject to supervision of the society for a period of six months subject to terms and conditions. The order made on 8 July 2003 was in consequence of the filing of a statement of agreed facts. Mr. Frank Philcox was acting as counsel of record for the respondent mother in respect of that proceeding.
[13] The court made a further order on 18 August 2004 that the children, where determined to be in continued need of protection pursuant to the provisions of clause 37(2)(i) of Child and Family Services Act and were placed into the continued care of the respondent mother, subject to supervision of the society for a period of six months. It is unknown to the court in respect of filings made as to the identity, if any, of the respondent mother's counsel in respect of proceedings having concluded by the order dated 18 August 2004.
[14] On 6 June 2005, an order was made of the court's terminating the supervision order.
[15] Beginning in 2002, at the time that the respondent mother was the subject of protection proceedings in the court, her counsel of record, Mr. Frank Philcox apparently was a barrister and solicitor, practicing as a "sole practitioner". At some time after that, Mr. Philcox became employed as counsel by the Windsor-Essex Children's Aid Society on an "in-house counsel" basis. Subsequently Mr. Philcox withdrew from direct employee status with the Windsor-Essex Children's Aid Society and then went into "a partnership with other counsel doing work as counsel for the Windsor-Essex Children's Aid Society."
[16] Mr. Frank Philcox is currently in some sort of partnership or association with Mr. Mark Hurley in the law firm Philcox and Hurley. Mr. Frank Philcox and Mr. Mark Hurley were partners in a previous law firm namely Philcox, Gatten and Hurley.
[17] When Mr. Mark Hurley began the litigation of the matter before the court, Mr. Hurley was employed directly by the Windsor-Essex Children's Aid Society. Shortly thereafter, Mark Hurley and Frank Philcox began a partnership or association, which continues to the present time.
[18] On 29 October 2014, L.H. was advised that her prior counsel Mr. Frank Philcox was associated in the practice of law with Mr. Mark Hurley. Ms. L.H.'s counsel immediately communicated with Mr. Hurley the request of the respondent mother, that he not continue to act on behalf of the society.
[19] Within the proceeding pending for trial, the society seeks an order for Crown wardship without access to either respondent parent.
The Law
[20] The Rules of Professional Conduct established by the Law Society of Upper Canada govern the solicitor-client relationship regarding a member of a firm acting in a manner adverse in interest to another members' former client.
[21] The Law Society of Upper Canada provides direction having to do with steps which ought to be taken in order for conflicts to be suitably addressed. In circumstances where counsel has transferred among firms, Rule 3.4-26 directs that lawyers must exercise due diligence in ensuring that each member and employee of the lawyer's law firm and each other person who services the lawyer has retained:
A. complies with rules 3.4-17 to 3.4-26; and
B. does not disclose confidential information of: (i) clients of the firm; and (ii) any other law firm in which the person has worked.
[22] The Supreme Court of Canada has provided direction regarding solicitor-and-client conflict of interest circumstances.
[23] Within the parameters of that determination, the court focused on three competing values namely:
A. To maintain the high standards of the legal profession and the integrity of the justice system;
B. A litigant should not be deprived of his/her choice of counsel without good cause;
C. The desirability of permitting reasonable mobility within the legal profession.
[24] MacDonald Estate v. Martin, supra, addressed the appropriate standard to be applied in determining whether a conflict of interest existed regarding representation by a party against a former client. In the majority determination, the court stated that maintaining the fundamental professional standards was essential in order to preserve the respect of the public for the profession.
[25] The court, in concluding that there was nothing more important to the maintenance of the respect of the public than the confidentiality of information passing between a solicitor and client, stated "Loss of this confidence would deliver a serious blow to the integrity of the profession and to the public's confidence in the administration of justice."
[26] The Supreme Court of Canada within MacDonald Estate v. Martin, supra, set out a two-part test that must be applied when making a determination regarding whether or not a disqualifying interests exists:
Did the lawyer receive confidential information attributable to a solicitor-and-client relationship relevant to the matter at hand? and
Is there a risk that it will be used to the prejudice of the client?
[27] The court observed that within that determination that conflicts of concern were not limited to the lawyer but also to members of the lawyer's firm and that, "there is, however a strong inference that lawyers who work together share confidences."
[28] In addressing the first consideration, the court stipulated that it should be inferred that confidential information had been obtained once it was established that there was a previous relationship sufficiently related to the retainer about which a motion sought to remove counsel. Nonetheless counsel would be able to have opportunity to demonstrate on evidence that no information was imparted that could be relevant.
[29] The court addressed in portions of the determination that governing bodies of the legal profession might make recommendations that would address concerns about the potential for breach of solicitor-and-client privilege with particular emphasis on circumstances where counsel changed firms and might subsequently find themselves in positions of potential conflict.
[30] The court stipulated that there had to be evidence to support the claim that either no confidential information had been shared or that potential for disclosure had been addressed by safeguards. Bald assertions and undertakings not to disclose were insufficient.
[31] The most compelling and instructive portions of the determination in MacDonald Estate v. Martin, supra, are found at pages 1261 to 1263 which provides as follows:
The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case, the disqualification is automatic. No assurance or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship.
The answer is less clear with respect to the partners or associates in the firm. Some courts have applied the concept of imputed knowledge. This assumes that the knowledge of one member of the firm is the knowledge of all. If one lawyer cannot act, no member of the firm can act. This is a rule that has been applied by some law firms as their particular brand of ethics. While this is commendable and is to be encouraged, it is, in my opinion, an assumption that is unrealistic in the era of the mega-firm. Furthermore, if the presumption that the knowledge of one is the knowledge of all is to be applied, it must be applied with respect to both the former firm and the firm that the moving lawyer joins. Thus, there is a conflict with respect to every matter handled by the old firm that has a substantial relationship with any matter handled by the new firm irrespective of whether the moving lawyer had any involvement with it. This is the "overkill" that has drawn so much criticism in the United States to which I have referred above.
Moreover, I am not convinced that the reasonable member of the public would necessarily conclude that confidences are likely to be disclosed in every case despite institution efforts to prevent it. There is, however, a strong inference that lawyers who work together share confidences. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the "tainted" lawyer to the member or members of the firm who are engaged against the former client. Such reasonable measures would include institutional mechanisms such as Chinese Walls and cones of silence. These concepts are not familiar to Canadian courts and indeed do not seem to have been adopted by the governing bodies of the legal profession. It can be expected that the Canadian Car Association, which took the lead in adopting a Code of Professional Conduct in 1974, will again take the lead to determine whether institutional devices are effective and develop standards for the use of institution devices that will be uniform throughout Canada. Although I am not prepared to say that a court should never accept these devices as sufficient evidence of effective screening until the governing bodies have approved of them and adopted rules with respect to their operation, I would not foresee a court doing so except in exceptional circumstances. Thus, in the vast majority of cases, the courts are unlikely to accept the effectiveness of these devices until the profession, through its governing body, has studied the matter and determined whether there are institutional guarantees that will satisfy the need to maintain confidence in the integrity of the profession. In this regard, it must be borne in mind that the legal profession is a self-governing profession. The Legislature has ensured to it and not to the court the responsibilities of developing standards. The court's role is merely supervisory, and its jurisdiction extends to this aspect of ethics only in connection with legal proceeding. The governing bodies, however, are concerned with the application of conflict-of-interest standards not only in respect of litigation but in other fields which constitute the greater party of the practice of law. It would be wrong, therefore, to shut out the governing body of a self-regulating profession from the whole of the practice by the imposition of an inflexible and immutable standard in the exercise of a supervisory jurisdiction over part of it.
A fortiori, undertakings and conclusory statements in affidavits without more are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying "trust me". This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likely to be satisfied without some additional guarantees that confidential information will under no circumstances be used. In this regard I am in agreement with the statement of Posner J. in Analytical, supra, to which I have referred above, that affidavits of lawyers difficult to verify objectively will fail to assure the public.
These standards will, in my opinion, strike the appropriate balance among the three interests to which I have referred. In giving precedence to the preservation of the confidentiality of information imparted to a solicitor, the confidence of the public in the integrity of the profession and in the administration of justice will be maintained and strengthened. On the other hand, reflecting the interest of a member of the public in retaining counsel of her choice and the interest of the profession in permitting lawyers to move from on firm to another, that standards are sufficiently flexible to permit a solicitor to act against a former client provided that a reasonable member of the public who is in possession of the facts would conclude that no unauthorized disclosure of confidential information had occurred or would occur.
Analysis
[32] It is beyond question that Frank Philcox was counsel of record for the respondent mother in respect of protection proceedings involving the Windsor-Essex Children's Aid Society involving the subject children. In consequence, there was established a solicitor-and-client relationship.
[33] The respondent mother shared confidential information with her counsel.
[34] A solicitor-and-client relationship protects the confidential information provided by the mother to her then counsel. L.H. has not waived that privilege.
[35] Frank Philcox is in some sort of a partnership or association within a law firm with Mark Hurley. There is insufficient evidence of safeguards to ensure that Ms. L.H.'s privilege will not be breached (e.g., "Chinese Walls and cones of silence").
[36] The assertion that files of Frank Philcox are not stored "here at our office" is insufficient evidence of sufficiency of safeguards to protect L.H.'s privilege.
[37] There is no affidavit material from Frank Philcox. There is no affidavit material from other counsel with whom Frank Philcox would have engaged in child protection litigation while employed directly at the Windsor-Essex Children's Aid Society or with other counsel in private practise, whether by way of a partnership or association (with the exception of the affidavit of Mr. Hurley).
[38] Mark Hurley makes the suggestion that L.H. and her lawyer were well aware of the participation of Frank Philcox and his association with Mark Hurley considerably before the date of correspondence authored by Ms. Murphy on 20 October 2014.
[39] That submission carries little weight. To be sure Sharon Murphy, counsel for the respondent mother should have, by applying due diligence, made the discovery of the involvement of Frank Philcox at a much earlier stage within the proceeding, via disclosure of documents including the statements of agreed facts. Notwithstanding that absence of due diligence, such cannot be construed as a waiver by L.H. of her privilege in any sense.
[40] The bald assertion by Mark Hurley that he has had no discussion with Frank Philcox in respect of the representation by Frank Philcox of Ms. L.H. is insufficient.
[41] There is no evidence of what, if anything, transpired relative to communication or disclosure of documents having to do with Frank Philcox's representation of L.H. among other persons including Windsor-Essex Children's Aid Society personnel during the period of time during which he was "in-house counsel" even if only by inadvertence. There is no evidence from Mr. Frank Philcox of safeguards employed to protect the privilege owed to Ms. L.H.
[42] There is no evidence touching upon steps taken by Frank Philcox at the time he was employed as society in-house counsel of safeguards employed to protect against potential conflict. There is no evidence of steps taken to protect against potential conflict when Frank Philcox began practising law with Mark Hurley and Ms. Gatten and later exclusively with Mr. Hurley.
[43] There is no evidence directly from Mr. Philcox describing steps taken to protect L.H.'s ongoing right to have her information held in the strictest of confidence.
[44] There is no evidence that L.H. consented or waived her privilege.
Conclusion
[45] The society retains its choice of counsel given that it has several others available for it to choose. The society has had notice of this impediment since 20 October 2014 by way of the letter from Ms. Murphy.
[46] Ms. L.H.'s solicitor-and-client privilege has not been waived and there is insufficient evidence of steps taken to ensure its protection.
[47] The trial of this case, where the child's permanency is at stake (within a Crown wardship, no-access-to-parents scenario) is the most intrusive remedy. Further delay in the determination of this case must be avoided. A timely swift determination of this motion is required. The trial must proceed as soon as possible.
[48] The words of Lord Gordon Hewart remain quite apt to the circumstances of this case and its result: "a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
[49] Accordingly on the basis of all of the foregoing, Mark Hurley is in no position to continue to act on behalf of the Windsor-Essex Children's Aid Society in respect of this proceeding.
[50] Ms. Murphy shall file a draft of this order by 3 December 2014 at 2:00 in the afternoon.
Justice Douglas W. Phillips
Released: 2 December 2014