Howard v. Howard, 2015 ONSC 1499
BARRIE COURT FILE NO.: FC-14-692-00
DATE: 20150306
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Connie Marie Howard, Applicant
AND:
Douglas James Howard, Respondent
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL: T. Dart, Counsel for the Applicant
T.B. Owen, Counsel for the Respondent
HEARD: February 5, 2015
ENDORSEMENT
[1] The respondent, Douglas James Howard (Dr. Howard), brings a motion for an order removing Kim Kieller as solicitor for record for Connie Marie Howard (Ms. Howard), on the basis of a conflict of interest, Dr. Howard’s former counsel having joined Ms. Kieller’s firm.
Background Facts
[2] The following background facts will provide context for the discussion that follows. In October of 2013, Dr. Howard retained as counsel, David Harris-Lowe. At that time, Mr. Harris-Lowe was a partner of Trevor Owen. Mr. Harris-Lowe commenced work for Dr. Howard and docket entries filed indicate he spent about five hours working on the file.
[3] Ms. Howard retained Kim Kieller of the Barriston law firm to act as her counsel. Shortly thereafter, Mr. Harris-Lowe decided to join the Barriston law firm, effective January 1, 2014. On November 8, 2013, Mr. Harris-Lowe wrote to Kim Kieller with respect to various issues on the Howard file, and concluded by saying:
Lastly, on the issue of conflict, Dr. Howard has indicated that given my starting at Barriston, that he is not comfortable with any lawyer at Barriston continuing to act for Ms. Howard. Please advise her that she will need to retain new counsel.
[4] Shortly thereafter, Trevor Owen took over Dr. Howard’s file. In a letter dated November 19, 2013, he raised the conflict issue on the basis that Dr. Howard’s former counsel would be in partnership with Ms. Kieller. As Mr. Owen stated in his letter:
If we had to do so, we would have to have a motion to remove you as wife’s counsel, as husband’s counsel is joining your firm in but a few weeks. Do you know who will be replacing you in this capacity?
Mr. Owen continued to raise the issue in subsequent correspondence with Ms. Kieller. By letter dated December 12, 2013, he stated, “Doug Howard’s lawyer of the first month in this proceeding in now in the same office as yourself. This is not right. You should not be acting in this matter.”
[5] The parties entered into temporary Minutes of Settlement on September 30, 2014. On a without prejudice basis, Dr. Howard agreed to pay $8,814 per month in child support, and $12,459 in monthly spousal support.
[6] Counsel for Dr. Howard submits that the conflict of interest issue was raised at a case conference, and as no new counsel was appointed, Dr. Howard brought this motion to seek to remove Ms. Kieller.
Position of Dr. Howard
[7] In his affidavit of November 11, 2014, Dr. Howard expressed his concern about his former lawyer working in the same firm as Ms. Kieller. As he stated in his affidavit:
Certainly, the respondent/father hereby attests that he never thought anything he said to David Harris-Lowe would then be at risk of being available to the applicant/mother with Mr. Harris-Lowe now working with Kim Kieller. It is a situation which genuinely concerns him.
In a further affidavit dated January 30, 2015, he expressed his concerns indicating that even an ethical wall between Mr. Harris-Lowe’s office and Ms. Kieller’s office would not be a foolproof system.
The Position of Ms. Howard
[8] The affidavit of Ms. Howard expresses confidence in Ms. Kieller and her wish to continue to retain her to represent her throughout these proceedings. Ms. Howard’s affidavit does not address the issue of any prejudice that would be occasioned if she was required to seek alternative counsel in a community with an active and engaged family bar.
[9] Both Mr. David Harris-Lowe and Ms. Kieller filed affidavits in connection with this motion. The motion was argued on behalf of Ms. Howard by a senior member of Ms. Kieller’s law firm. As Mr. Harris-Lowe states in his affidavit:
I have never discussed the file or the contents of same with anyone at Barriston, except in preparing this affidavit. I have kept a strict code of secrecy and silence in regard to the use of this information. No confidential information that I received in acting for my former client, Dr. Howard, is available to Ms. Kieller in acting against Dr. Howard. A strict code of silence is imperative to me and I know that both myself, and Ms. Kieller have maintained same. We both attempt to maintain the highest ethical standards.
However, Mr. Harris-Lowe does acknowledge receiving confidential information from Dr. Howard during the period of time that he represented him.
[10] Ms. Kieller has also filed an affidavit, indicating that she set up an ethical wall in place as soon as she was aware of Mr. Harris-Lowe’s moving to her firm. As she states in her affidavit:
I have never discussed the file or the contents of same with Mr. Harris-Lowe or his former or current staff. I’ve kept a strict code of secrecy and silence in regard to the use of this information. To my knowledge, Mr. Harris-Lowe has done likewise.
[11] In addition, an affidavit was filed by an IT officer from Barriston. As Shane Plewes states in his affidavit, “There is a specific ethical wall procedure within the Barriston processes, and passwords were put in place to prevent unauthorized access to the file.”
Analysis
[12] Both counsel made reference to the seminal Supreme Court of Canada decision Martin v. MacDonald Estate, [1990] S.C.R. 1235. When considering conflict of interest, the Court framed the question as follows at para. 48:
Typically, these cases require two questions to be answered:
(i) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
(ii) Is there a risk that it will be used to the prejudice of the client?
The Supreme Court provided the following comments with respect to the appropriate task at para. 47:
Since, however, it is not susceptible to prove, the test must be that the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the Court in answering the question: is there a disqualifying conflict of interest?
At para. 51, the Court offered the following guidance:
Moreover, I am not convinced that a reasonable member of the public would necessarily conclude that confidences are likely to be disclosed in every case despite institutional 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.
[13] The Supreme Court of Canada returned to this issue in a recent case, Canadian National Railway Co. v. McKercher LLP, [2011] S.C.C. 39. In that case, the Court found that the law firm had summarily dropped a client in order to circumvent conflict of interest rules. The Court noted that the law firm possessed no relevant confidential information that could be used to prejudice its former client. But as the Court noted at para. 11:
As regards to the appropriate remedy to McKercher’s breaches, I conclude that the only concern that would warrant disqualification in this case is the protection of the repute of the administration of justice.
As the Court further stated a para. 61:
Disqualification may be required:
(i) to avoid the risk of improper use of confidential information;
(ii) to avoid the risk of impaired representation; and/or
(iii) to maintain the repute of the administration of justice.
[14] The MacDonald Estate principles were applied by Justice Ferrier in Marinangeli v. Marinangeli, [2004] O.J. No. 3082. As Justice Ferrier noted:
The relationship between family lawyers and their clients goes well beyond technical, financial and impersonal information. Clients come to family lawyers when they are at their most vulnerable. They disclose, whether by direct words or in the very nature of their instructions to counsel, their strengths and weaknesses in the processes of settlement discussions, negotiation tactics and litigation strategies. They disclose to their counsel their perception of the strength and weaknesses of the opposite party in these matters.
In that case, Justice Ferrier found that the solicitor had not satisfied the heavy onus upon him that no information had been imparted to the other side.
[15] Counsel for Ms. Howard rely on Gardner v. Gardner, [2007] ABQC 578. That case addressed a lawyer joining another firm, and the Court found that institutional measures had taken place which would rebut the presumption that confidential information may have flowed from former counsel.
[16] The Law Society of Upper Canada’s Rules of Professional Conduct have recently been amended with respect to lawyers transferring from one firm to another. The rule does not provide an absolute prohibition but indicates at Rule 3.4-20:
The new law firm must cease its representation of its client in the matter unless,
(a) the former client consents to the new law firm’s continued representation of its client; or
(b) the new law firm establishes that it is in the interests of justice that it act in the matter, having regard to all relevant circumstances, including,
(i) the adequacy and timing of the measures taken to ensure that no disclosure of the former client’s confidential information to any member of the new law firm will occur;
(ii) the extent of prejudice to any party;
(iii) the good faith of the parties;
(iv) the availability of suitable alternative counsel; and
(v) issues affecting the public interest.
[17] On the material before me, Ms. Howard’s counsel has addressed measures to ensure that there is no disclosure of confidential information. However, the response to the motion does not deal with certain aspects of rule 3.4-20, namely, the extent of prejudice to Ms. Howard and the availability of other counsel for her.
Conclusion
[18] Not every transfer of lawyers from one firm to another will automatically raise a conflict of interest requiring a client to obtain new counsel. A contextual approach is required depending on the facts of the case. This is a family law matter, where parties are most vulnerable. Dr. Howard retained counsel and provided confidential information to him. Acting on his behalf, his counsel wrote to Ms. Howard’s counsel with respect to the issue of conflict and raised the issue of the need for new counsel. The issue was repeated in subsequent correspondence by Dr. Howard’s new counsel. Dr. Howard’s perception that this was a concern is raised in his affidavits. I accept that Ms. Kieller and Mr. Harris-Lowe have set up an ethical wall and have gone to great pains to avoid sharing information. But the court has an obligation to protect the integrity and repute of the administration of justice: McKercher at para. 63. The question posed by the Supreme Court of Canada in MacDonald Estate bears repeating, “The test must be such that the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.” I am satisfied that a reasonably informed person, having considered all of the facts in this case, would have a concern, notwithstanding any institutional measures, when a client’s lawyer, possessing confidential information, joins a law firm representing the client’s former spouse. The motion seeking to remove Ms. Howard’s solicitor as counsel of record is therefore granted.
Costs
[19] At the conclusion of the motion, both counsel agreed that costs would follow the event and the successful party would receive an award of $6,000 for costs. I therefore fix costs in the amount of $6,000, payable by Ms. Howard to Dr. Howard within thirty days of the release of this endorsement.
MULLIGAN J.
Date: March 6, 2015