A very interesting case came out of Ottawa earlier this year dealing with conflicts of interest. This case should be read carefully and its reasons adhered to as the facts are ones that are very easy for anyone who practises law to get caught up in, however innocently.
Rosenstein v. Plant is a decision of Justice Jennifer Blishen dealing with the issue of an alleged conflict of interest by counsel in which there had been no prior retainer or even an attempt to enter into one for legal services.
In this case, husband Todd Kiley Plant, also a family lawyer, was acquainted with fellow counsel Murray Ages. He was later retained by Plant's wife, Charlene Gail Rosenstein. As Plant is also a lawyer, it's natural that he would have many occasions to speak with Ages, who likely wouldn't think much of such conversations, especially as they may relate to creating a potential solicitor-client relationship or one resembling such an arrangement. It should be made clear at the outset that the two alleged communications happened some time before Rosenstein retained Ages.
The parties had separated and settled all issues by way of a separation agreement in 2007. The current proceedings involved a variation of the agreement as it pertained to child support and an alleged lack of financial disclosure by Plant of his income for purposes of calculating payments. Last summer, Rosenstein retained Ages, who wrote to Plant's counsel advising of his retainer and seeking information. It was then that the conflict issue came up.
Plant alleged that in 2006, prior to separation, he had run into Ages and had some discussions pertaining to his pay structure as well as child support issues. He claimed that at that time, Ages provided him with legal advice. Ages denied doing so and took the position that the alleged advice was something he wouldn't have given to anyone.
The second material allegation relates to a conversation at the courthouse, also prior to any retainer with Rosenstein, last spring. Plant alleged he had provided relevant income information to Ages during this conversation. There was nothing in any of the allegations suggesting Plant had retained Ages or was even considering doing so. As a result, there was no reason for Ages to keep notes or a detailed recollection of any discussions.
It's very easy to put oneself in Ages' shoes. Quite possibly, he believed he was simply exchanging pleasantries and perhaps sympathizing with a colleague about his personal situation while providing generic information.
Ages took the position that whatever conversations he may have had with Plant were in fact generic in nature and that he didn't recall receiving any relevant or confidential information that would create a conflict of interest. Unfortunately for him, it seems his lack of specific recollections is what ultimately led Blishen to find that a conflict of interest did exist as Plant's affidavit evidence was very specific about the nature of the information imparted.
Based on that evidence, which the judge was quick to point out was untested under cross-examination, and applying the Supreme Court of Canada's test in MacDonald Estate v. Martin, Blishen found that confidential information was in fact imparted to Ages by Plant. Balancing the public interest with respect to a perception of conflict and Rosenstein's interest in having counsel of her choosing, Blishen found that even though Ages may not recall any of the specific information, the perception of a conflict existed nonetheless and ordered him removed as counsel.
While this case doesn't alter the law on conflicts of interest in any way, it's an important reminder, particularly on these types of facts, of how easy it is to get into such a situation. In all likelihood, Ages probably didn't have any information he could have used to further Rosenstein's case; however, the perception of conflict still exists, and the law is clear that neither a formal retainer or even a meeting to discuss a potential retainer need to be present to create a solicitor-client-like relationship. As counsel, especially for the majority of us who practise in smaller and more closely knit legal communities, it's important to always remain vigilant about the discussions we have with others, including lawyers, as the potential for a conflict of interest to arise is ever present.
Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP LLP in Ottawa. She can be reached at firstname.lastname@example.org
[This article is reprinted with permission and first appeared in the May 2010 issue of The Law Times.]