By the time a matter reaches trial, a client and her lawyer will have spent a significant amount of time together. A bond often develops over the course of the relationship, with the client trusting that her lawyer will put forward her position forcibly and knowledgeably. As a result, an attempt by the other side to remove the lawyer from the file is disruptive and often viewed with suspicion. To succeed, the other side must convince a court that the attempt to have the other lawyer removed is not tactical (to cause delay and increased expenses for the other party), but necessary to rectify an impropriety. Such was the issue to be determined in Gloger v Evans, 2018 ONSC 4919.
Jochen Gloger died in 2015. He had prepared a will in 2010 with the assistance of his lawyers at Stewart Esten Law Firm, or “SE.” Jochen named his two children, Robert and Michelle, as co-estate trustees and equal beneficiaries.
Robert initially reached out to SE about assisting him and his sister to administer the estate. However, three days after first calling SE, a dispute arose between Robert and Michelle and they hired separate counsel. Not long after, Robert commenced an action against Michelle to have her removed as co-estate trustee, claiming that she had misappropriated estate assets and breached her fiduciary duty.
Three years into the litigation, Michelle parted ways with her lawyer and chose a lawyer at SE to take over her defence. Robert immediately brought a motion to have SE removed from the file on the basis of conflict of interest. Robert argued that:
- He intended to call the lawyer at SE who prepared Jochen’s will as a witness at trial. Robert argued that having a witness cross-examined by a member of his own firm is inappropriate and would undermine the public’s confidence in the legal system;
- There is a presumption that lawyers at firms share confidences, meaning that Michelle, through her choice of counsel, is receiving “inside information” not available to him;
- He briefly retained SE after his father died, although he and his sister retained separate counsel three days later; and
- SE has only recently been retained by Michelle, meaning there is little prejudice to Michelle if SE is removed.
As a first step, the Court reviewed the test, set out in MacDonald Estate v Martin, for disqualifying a lawyer on the basis of conflict of interest:
(1) Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the matter at hand?
(2) If so, is there a risk that it will be used to the prejudice of the client?
On a review of the evidence, the Court did not accept any of Robert’s arguments that a conflict of interest existed. The Court found that:
- Robert’s action centres solely on the alleged wrongdoings by Michelle as an estate trustee; Robert has not challenged the validity of Jochen’s will. As a result, the Court held that the evidence of the drafting solicitor was entirely irrelevant to the proceedings and there was no reason he should be called as a witness;
- Again, since the validity of the will was not in issue, the Court found that there was no risk that Michelle’s counsel was receiving “inside information” from the drafting solicitor not available to Robert. In addition, the drafting solicitor had already sworn an affidavit regarding the preparation of the deceased’s will. Both parties had received a copy of the affidavit and neither side had chosen to cross-examine him on it;
- Robert’s telephone call with an unknown person at SE’s office did not amount to a retainer (Robert could not recall who he spoke with, nor could the members of the firm find notes of the call). Even if there had been a three day retainer, as Robert alleged, on his own admission Robert claimed not to have shared confidential information with SE; and
- Deference must be given to the right of a client to be represented by counsel of her choice.
Having lost on the motion to disqualify SE, Robert was ordered to pay Michelle her partial indemnity fees.
This case can be read as confirmation that there is no “appearance of impropriety” when the same firm that acted for the deceased is subsequently retained by a beneficiary of the estate. However, a conflict is likely to arise where the validity of the deceased’s will is brought into question, or where the actions or intentions of the deceased while alive are relevant to the proceeding. In those circumstances, the choice of law firm should be carefully considered.