Enes Cengic v. Victoria Castro et al.

COURT FILE NO.: CV-12-446208

DATE: 20200213

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Enes Cengic, Plaintiff

– and –

Victoria Castro et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Enes Cengic, the plaintiff in person Aron Zaltz for Preszler Injury Lawyers, lawyers for the plaintiff Todd Wasserman, for the defendants Her Majesty the Queen in right of the Province of Ontario and Carillion Canada Inc.

HEARD: February 12, 2020

endorsement

This Motion

[1] This Endorsement applies as well to the action under Court File No. CV-12-467219.

[2] Preszler Injury Lawyers moves for an order removing them as lawyers of record for the plaintiff in the two actions. They also seek a charging order for $93,748.21 for disbursements paid on behalf of the plaintiff inclusive of HST.

[3] I heard the motion on an urgent basis on February 12, 2020. The plaintiff claims that he sustained personal injuries in a motor vehicle accident on December 13, 2010. A six-week trial of the two actions is scheduled to begin in 19 days on March 2, 2020.

[4] At the conclusion of the hearing, I provided the parties with the following handwritten Endorsement:

For reasons of urgency with a six-week trial imminent, it is important that I resolve this matter. I will provide detailed reasons for my decision in due course. However, and for the first time, I have concluded that the lawyer’s motion to be removed from the record must be dismissed. David Preszler and Preszler Injury Lawyers remain as lawyers of record for Enes Cengic and shall act for him in the upcoming trial.

[5] These are my reasons for dismissing the motion.

The Legal Issue

[6] In my view, the Rules of Professional Conduct of the Law Society of Ontario provide the path to the proper outcome of this motion. While the lawyers’ ethical rules are not binding on the court, the same issues arise at common law. See: Todd Family Holdings Inc. v Gardiner, 2015 ONSC 6590 at paras. 11 to 13; Konstan v. Berkovits, 2019 ONSC 3063, at paras. 9 to 14.

[7] Rule 3.7-1 of the Rules of Professional Conduct provides:

3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.

[8] There are two issues at play: “good cause” and “reasonable notice.” This case can be determined on the issue of notice. Therefore, I do not need to resolve the issue of whether Mr. Preszler had cause to withdraw.

[9] Commentary 2 under this Rule 3.7-1 expands on the quality of notice that a lawyer must provide to the client before withdrawing services:

No hard and fast rules can be laid down about what will constitute reasonable notice before withdrawal and how quickly a lawyer may cease acting after notification will depend on all relevant circumstances. Where the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer's ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril. [Emphasis added.]

[10] The issue was stated in Konstan as follows:

I agree with Mr. Shiller’s counsel who argues that the court’s principal concern on a motion by counsel to get off the record under Rule 15.04 ought to be directed to ensuring that the clients are able to obtain new counsel without being prejudiced beyond the loss of historical knowledge that is necessarily incidental to a change of counsel.

[11] In that case, trial was a long way off. The facts of this case are different.

The Facts

[12] The plaintiff’s car accident occurred over nine years ago. The litigation commenced eight years ago. On January 11, 2017, D. Wilson J. scheduled a 15-day non-jury trial to commence March 25, 2019. On March 13, 2019, just prior to its commencement, the trial was adjourned to January 6, 2020 for 20 days. On November 30, 2019, Firestone J. (as he then was) adjourned the trial to March 2, 2019 and increased the scheduled length of the trial to 30 days.

[13] Mr. Zaltz advises that the adjournment of the initial trial date was required due to the need for additional and complex expert testimony. As can be seen, the proposed length of the trial doubled in the intervening period. Mr. Preszler’s disbursement account is nine pages long and includes a number of payments to experts. Mr. Zaltz justifies the firm’s request for a charging order by submitting that it is handing to Mr. Cengic’s next counsel an impressive set of expert reports on complex issues on a trial-ready basis.

[14] The lawyers assert that they can no longer act for Mr. Cengic because there has been a breakdown in their relationship. Mr. Preszler says that he cannot act for Mr. Cengic because the client has resiled from his instructions and refuses to follow the lawyer’s settlement advice.

[15] Mr. Preszler says that at a pre-trial conference, Mr. Cengic instructed him to make a settlement offer. After making the offer, the conference ended with the defendants agreeing to seek instructions. Mr. Preszler says that later that day he called Mr. Cengic to tell him the net or actual amount of money that he would receive if the outstanding offer was accepted. On hearing the net amount remaining for him after fees and disbursements, Mr. Cengic instructed Mr. Preszler to withdraw the offer. The offer was withdrawn. There is no indication in the evidence that the offer would have been accepted by the defendants had it not been withdrawn.

[16] It is apparent on Mr. Preszler’s evidence that the client gave the instruction recommended by Mr. Preszler at the pre-trial conference without understanding the full economic impact of the offer. Once Mr. Preszler told Mr. Cengic the amount of money that would remain for him under the offer, Mr. Cengic instructed Mr. Preszler to withdraw the offer.

[17] I do not see this event as reflecting an irreconcilable breakdown of the relationship between lawyer and client. If anything, this event shows that Mr. Cengic trusted Mr. Preszler to make an offer that he did not fully appreciate.

[18] The second event raised by the law firm involves advice given by Mr. Preszler that Mr. Cengic should enter into a partial settlement with one set of defendants alone under a Pierringer agreement. Mr. Preszler testifies that he advised Mr Cengic that entering into a partial settlement “would be forcing the hand of the remaining Defendant.”

[19] Mr. Preszler says that nine days later, Mr. Cengic refused to proceed with the partial settlement he had recommended. Mr. Cengic does not deny this. Rather, Mr. Cengic says that he waited a week after instructing Mr. Preszler to proceed with the partial settlement. On hearing nothing, he called Mr. Preszler and discussed the strategy with him. Instead of reporting that the other defendant had been forced into settling as previously represented, Mr. Preszler told Mr. Cengic that he could not guarantee what the other defendant would do. However, Mr. Preszler advised that Mr. Cengic should “grab” the partial settlement anyway. Mr. Cengic quotes Mr. Preszler as saying “Grab it and go.”

[20] Mr. Preszler did not deny Mr. Cengic’s evidence or cross-examine him. The evidence of the two parties does not conflict. I can accept both and I do.

[21] Mr. Preszler’s approach upset Mr. Cengic. He views his claim as a serious one. He is not trying to grab money and go away. Moreover, the basis for Mr. Preszler’s advice to proceed with a partial settlement had been undermined. The offer of a partial settlement had not forced the remaining defendant to the table.

[22] On learning that the proposed settlement strategy had failed, Mr. Cengic decided to go to trial.

[23] Mr. Preszler testifies that he cannot act for Mr. Cengic in light of the changes in his instructions and his refusal to enter into the partial settlement as recommended.

Analysis

[24] Mr. Zaltz argues that it is the lawyer’s role to advise on what is in the client’s best interests. If the lawyer believes in earnest that the client’s best interest lies in settlement, the lawyer is duty-bound to say so. If the client rejects the lawyer’s advice, he argues, the trust underlying the relationship is broken.

[25] Mr. Zaltz did not present any law on the question of whether a lawyer’s advice on settlement is the type of advice that the client is expected to accept. One may argue that the lawyer’s role is to present the issues and make a recommendation. On this basis, the decision of whether to accept a settlement or take the risk of going to trial is a decision for the client alone. The fact that the lawyers are retained on a contingency fee basis gives the firm an economic interest in the decision. The lawyers’ interest is arguably in conflict with the interest of the client if the lawyers do not believe that the fees to be generated from a trial verdict will justify the investment of further time and effort by the firm. This is a difficult issue of competing duties and ethics. As interesting as the issue may be however, as noted above, I do not have to resolve this question in this case.

[26] I accept that the issues in the case are complex and challenging. Mr. Zaltz agreed that Mr. Cengic would be prejudiced if he had to try to present the case himself. He proposes an adjournment of the trial to allow Mr Cengic to obtain new counsel. In its Notice of Motion, Preszler Injury Lawyers sought an order that the plaintiff’s claim be dismissed if he fails to appoint a new lawyer or serve a notice of intention to act in person within 30 days of service on him of the order removing the firm from the record. In argument, Mr Zaltz submitted that the date could be extended to protect the plaintiff.

[27] The defendants who appeared took no position on the issues between the plaintiff and his lawyer. However, they did not consent to an adjournment of the trial. Mr. Wasserman advised that they did not oppose an adjournment if the lawyers are removed.

[28] Mr. Cengic however objects to an adjournment of the trial. He has been engaged in this process for almost a decade with Mr. Preszler by his side. He has already seen the trial delayed for a year. He is under a psychiatrist’s continuing care and wants to end the distress of the ongoing litigation.

[29] Mr. Zaltz did not try to argue that his firm had provided reasonable notice or that Mr. Cengic would not be prejudiced by its withdrawal now. Rather, he argued that adjournment of the trial would protect Mr. Cengic from prejudice When I asked if an adjournment itself was prejudicial, Mr. Zaltz submitted that the prejudice to Mr. Cengic of an adjournment of the trial was less than the prejudice of proceeding to trial without counsel. But relative prejudice is not the issue. It is no answer to say that the harm to the client could be worse. Lawyers are not free to “desert their clients at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.” I cannot think of a more critical stage than 19 days before a six-week trial in a complex matter that is a decade old.

[30] Moreover, in my view, a further delay of the trial that has already been delayed for a year and is ready to go is prejudicial to and imperils the client. Mr. Cengic submits that he does not understand why his lawyer wants to desert him as he did nothing wrong. He just wants to finally have his case resolved by acceptable settlement or trial. That was the whole purpose of the time, money, and emotional commitment invested over the past decade. He cannot understand why he is not preparing for trial with Mr. Preszler instead of standing in court facing allegations from him.

[31] Mr. Cengic submits that he has been at this venture for so long, he wants it to come to an end. He does not believe that he will be able to find a lawyer quickly who will take on a case after he has been fired by his long-time lawyer at the last minute. Furthermore, he fears for his mental health as the added stress and distress of this untoward circumstance weighs on him. I agree with him on all counts.

[32] The case is ready to go as Mr. Zaltz confirms. Mr. Cengic is not capable of presenting it. The choice of adjourning or proceeding without counsel is a Hobson’s Choice – both are bad outcomes. Both are prejudicial to Mr. Cengic. Both leave him imperiled and disadvantaged at a critical moment. The lawyers are not “ensuring that the clients are able to obtain new counsel without being prejudiced beyond the loss of historical knowledge that is necessarily incidental to a change of counsel.” See Konstan at para. 14. As such, the law does not allow them to withdraw.

[33] Accordingly, the motion is dismissed without costs.

Disclosure of Privileged Information

[34] The lawyers’ motion record and supplementary affidavit discloses information that is subject to lawyer client privilege. I am not aware of any basis upon which a lawyer is authorized to release privileged information on a motion to be removed from the record. While this may make proof of the requisite issues more cumbersome, the fundamental importance of privilege requires that it be assiduously protected.

[35] The Rules of Professional Conduct provide guidance on when a lawyer may release privileged information:

3.3-1.1 When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.

3.3-2 [FLSC - not in use]

3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

3.3-4 If it is alleged that a lawyer or the lawyer's associates or employees

(a) have committed a criminal offence involving a client's affairs;

(b) are civilly liable with respect to a matter involving a client's affairs;

(c) have committed acts of professional negligence; or

(d) have engaged in acts of professional misconduct or conduct unbecoming a lawyer,

the lawyer may disclose confidential information in order to defend against the allegations, but shall not disclose more information than is required.

3.3-5 A lawyer may disclose confidential information in order to establish or collect the lawyer's fees, but the lawyer shall not disclose more information than is required.

3.3-6 A lawyer may disclose confidential information to another lawyer to secure legal advice about the lawyer's proposed conduct.

[36] None of these provisions authorize a lawyer to release privileged information when she is not compelled by law, protecting human life, under attack by the client, collecting fees, or seeking her own legal advice about her proposed conduct. Moreover, even in those cases, the disclosure must be narrowly contained.

[37] Rules 15.04(1.2) and (1.3) of the Rules of Civil Procedure, RRO 1990, Reg 194, provide a mechanism to protect clients from prejudice on motions by lawyers to be removed from the record. They require that lawyers file redacted materials that omit privileged or confidential information from the publicly filed documents. Full copies are to be handed up to the court on the hearing of the motion and are to be returned to counsel after the hearing. The relevant rules provide:

(1.2) The lawyer making the motion shall ensure that any information contained in the notice of motion or in the motion record that is subject to solicitor-client privilege or that could, if it were disclosed to another person, be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion and from the motion record before,

(a) serving the notice of motion or, if applicable, motion record on a party other than the client; or

(b) filing the notice of motion or motion record.

(1.3) The lawyer shall provide to the presiding judge or officer at the hearing the complete and unredacted versions of the notice of motion and motion record, which shall be returned by the judge or officer to the lawyer after the hearing and shall not form part of the court file.

[38] Following this process avoids constitutionally sensitive questions of sealing the file or sealing the courtroom. Moreover, although the Rules refer to filing privileged material, in my view, that only applies where the release of privileged information is otherwise permitted by law. There is no license for lawyers to release privileged information when they ask to be removed from the record.

[39] Preszler Injury Lawyers are directed to prepare redacted copies of their motion materials and Mr. Cengic’s affidavit and to contact the Civil Motions Office to exchange the redacted materials for the materials currently filed. This shall be done before February 21, 2020. The Court directs the Motions Office to hold these motion files separate from the public registry and to allow Preszler Injury Lawyers to exchange redacted materials for the materials currently in the files.

F.L. Myers J.

Date: February 13, 2020