Successfully summoning counsel of record for examination is typically a difficult task, and a motion to quash will often be brought after a summons is served on counsel for one of the parties.
Case law in is clear that, generally, calling a lawyer to give evidence against their client should not be done absent the most exceptional circumstances. At a minimum there must be high materiality and necessity – the issue must be important, highly controversial, other witnesses must be unavailable, and other means of getting the evidence in (like an agreed statement of fact) should not be an option.
As seen in Debono v Debono, successfully summoning counsel appointed under section 3 of the Substitute Decisions Act may be even more exceptional.
Carmen Debono is a 75 year old widow with six children. In March 2019, two of these children brought an application seeking an order requiring Carmen to submit to a capacity assessment regarding her ability to manage her property and personal care. The Applicants questioned Carmen’s ability in 2018 to revoke prior Powers of Attorney for Property and Personal Care and make new ones.
Carmen retained counsel of her choice in May 2019, namely Clare Burns and Hayley Peglar of Weirfoulds. Ms. Burns then sought the appointment of section 3 counsel for Carmen, and the PGT appointed Ms. Burns.
Counsel for the two Applicant children objected on the basis that Ms. Burns would likely be a fact witness in the proceedings; the Applicants sent a summons to Ms. Burns seeking to have her to produce all communications between her office and any of Carmen’s Respondent children, and anyone acting under their direction (including their children and a housekeeper). Of course, if the summons was not quashed and Ms. Burns was examined, she would no longer be able to act for Carmen.
Ms. Burns then provided the parties with a 75-page tabbed brief containing the email and voicemail communications between Weirfoulds and members of the Debono family. No solicitor-client privileged communications were disclosed, and the Applicants claimed they did not seek any. During cross examination, one of the Applicants stated that Ms. Burns was in a unique position to attest to the manipulation and isolation that Carmen experiences based on her interactions with Carmen’s Respondent children, and that the brief was only the tip of the iceberg.
Justice Gilmore quashed the summons noting that the Respondent siblings, who were alleged to be influencing their mother, had not yet been examined and it was not clear that it was necessary to examine counsel.
Justice Gilmore also noted that, often, communication between section 3 counsel and family members is inevitable and if those communications are the subject of a summons there is a possibility section 3 counsel would be sidelined in many high conflict cases. Section 3 counsel being sidelined would prejudice the individual whose capacity is in doubt and increase their costs. In addition, there is “the possibility of a chilling effect on section 3 counsel which must have its own repercussions on the integrity of the administration of justice.” Indeed, lawyers might be less willing to act as section 3 counsel if there is a known risk that they could be examined.