B Schitka: Private International Law Implications in Conflicts of Interest for Lawyers Licensed in Multiple Countries

Barrett B Schitka, University of Calgary – Faculty of Law; University of Houston Law Center

September 25, 2014 McGill Law Journal, Forthcoming

Conflicts of interest issues are one of the most complicated areas of the law governing lawyers that lawyers and law firms face on a day-to-day basis. These issues are further complicated when lawyers are licensed in more than one jurisdiction and become subject to multiple ethical regimes. This article investigates what rules and duties are applicable to lawyers licensed in multiple jurisdictions, and what solutions are available to the lawyer when the law governing lawyers from different jurisdictions diverge or conflict. Through a discussion of the Canadian and U.S. rules on conflicts of interest, this article advocates for a two-step “proper law” approach to determine which jurisdiction’s ethical rules should be applied.

Full paper on SSRN

A Woolley, “The More Things Change…. A Post-McKercher Conflicts Case”

Posted to ABlawg on February 11, 2014

Case Commented on:  MTM Commercial Trust v Statesman Riverside Quays Ltd.2014 ABQB 16

In his decision in MTM Commercial Trust v Statesman Riverside Quays Ltd. Justice Macleod determined whether Bennett Jones LLP could act for Matco Group, a client of many years, in a dispute with the Statesman Group, for whom Bennett Jones acted on a very limited retainer, and who had been advised that Bennett Jones would act for Matco in the event of a future dispute between the two clients.  Somewhat surprisingly, Justice Macleod held that Bennett Jones could not represent Matco.  In this comment I will suggest that this judgment supports the position I set out in an ABlawg post in 2011, that “in actual cases judges are less concerned with carefully articulating the applicable rules, and more concerned with reaching the right outcome on the facts, all things considered” (The Practice (not theory) of Conflicts of Interest; see also Conflicts of Interest and Good Judgment).

For the rest of the post on the ABlawg website, click HERE

M Kowalski: Lawyers and Conflicts – the Myopia Continues

Mitch Kowalski posted to SLAW here: http://www.slaw.ca/2013/08/29/lawyers-and-conflicts-the-myopia-continues/

Yesterday, retired judge Dennis O’Connor resigned from heading up the Toronto Police use of force review. He did so because of a perceived conflict of interest over his role at Borden Ladner Gervais LLP; BLG represents the Toronto Police when they are sued.

According to the Toronto Sun, O’Connor said in a statement, “We were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not….. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.” Continue reading

S Yatim: Dennis O’Connor resigns from Chief Blair’s police review in wake of streetcar shooting

From the Toronto Star website, August 28, 2013

Dennis O’Connor, the former associate chief justice of Ontario, has decided he is no longer able to assist Toronto Police Chief Bill Blair in a review into the use of force by police.

O’Connor made the surprise announcement following questions raised about his affiliation to the law firm Borden Ladner Gervais.

“The basis for the decision is my position as counsel with Borden Ladner Gervais LLP (BLG), which also acts for the insurers of the Toronto Police Service in civil suits, some of which include allegations of the wrongful use of lethal force,” O’Connor said in a statement released Wednesday.

“As set out in Chief Blair’s August 14 press release, we are both satisfied that my association with BLG would not in fact impair my ability to provide the Toronto Police Service with sound advice on the matters involved in the review.

“However, after the announcement, we were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not.

“Upon careful consideration, I have come to the conclusion that my association with BLG may raise a public discussion about this issue that would be distracting and unfortunate. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.”

O’Connor said Blair would announce a replacement on Friday.

Blair later released a statement saying, “The Honourable Dennis O’Connor, Q.C., has just explained why he felt he had to withdraw from my internal review I announced on August 12, 2013. I have great respect for Mr. O’Connor and his work and I understand his decision.”

For the rest of the story, and analysis, on the Toronto Star website, click HERE

J Gallant: Chief Blair insists review will be unbiased despite O’Connor’s law firm client list

Jacques Gallant published this article in the Toronto Star on Wed, August 14, 2013

Toronto police Chief Bill Blair sought to assure the public on Wednesday the internal review of police’s use of force in dealing with emotionally disturbed persons will be unbiased, although the former judge tasked with leading the review, Dennis O’Connor, works for a law firm that has acted for the insurers of the police in civil suits.

In a statement emailed to reporters, Blair said he is satisfied O’Connor, a retired Ontario associate chief justice who is now employed by Borden Ladner Gervais LLP, will be able to provide him with sound advice on the policies he has been asked to look at.

For the rest of the story on the Star website, click HERE

Y Tadese: Ontario court applies McKercher, allowing lawyer to remain on case

Published in the Law Times on Monday, 19 August 2013 08:00 | Written By Yamri Taddese

In a decision referencing the Supreme Court’s ruling in Canadian National Railway Co. v. McKercher LLP, an Ontario court has refused to remove counsel from a case because he had formerly represented the opposing party. Richard Hames, a founding shareholder of a construction company, wants to retire but is in dispute with the rest of the shareholders about the terms of his withdrawal from the enterprise. The shareholders’ lawyer, Mark Klaiman, had previously represented Hames and his company.
But while Hames claimed Klaiman was in a conflict of interest due to his former retainer with him, the court didn’t readily agree.
In McKercher, the court made it clear that “it is not sufficient for the former client to make bald assertions that the lawyer had obtained confidential information,” Superior Court Justice David Brown wrote in Hames v. Greenberg on July 24.

For the full story on the Law Times website, click HERE

A Dodek: Does Solicitor-Client Privilege Apply to an Attorney-General Who Is Not a Lawyer?

Adam Dodek posted to SLAW on August 6, 2013.

No, it should not. That’s the best answer under existing doctrine and I think it is also the right answer.

In my previous post The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal Profession, I reviewed the BC courts’ rejection to a challenge to a non-lawyer being appointed to the top legal job in the BC government.

Since then, BC Premier Christy Clark appointed a lawyer (!) as Justice Minister and Attorney General (The Hon. Suzanne Anton).

Despite this, the trend of non-lawyers being appointed as AGs is not abating and the issue of whether Solicitor-Client Privilege covers their advice is likely to come before the courts eventually. Should Solicitor-Client Privilege protect advice from a non-lawyer Attorney General?

For the full article, complete with handy hyperlinks and discussion, go to the SLAW website HERE

M Love: Donation to charity gets Manitoba Crown fired

Myron Love posted the story on Legal Feeds (the blog of Canadian Lawyer and Law Times), posted July 16, 2013

t may be a case that is unique in legal annals in Canada.

Sean Brennan, a Manitoba Crown prosecutor since 2000, was fired in early July after he reported a situation in which a leading Winnipeg aerospace company made a substantial donation to a charity dear to Brennan’s heart at about the same time that Brennan dropped charges against the company charged with failing to follow required safety guidelines — which resulted in a workplace accident.

“It’s an unusual case,” says Allan Fineblit, CEO of the Law Society of Manitoba. “This was not a situation where the lawyer personally benefitted. The money went to a good cause.”

Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, however doesn’t see Brennan’s actions as differing substantially from any other “garden variety” conflict-of-interest situation despite the former prosecutor not gaining anything personally.

For the rest of the story on Law Feeds, click HERE.

A Woolley: Supreme Court of Canada on Conflict of Interest

Our own Alice Woolley wrote a comment for the Legal Ethics Forum on Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.

Today the Supreme Court of Canada issued its judgment in Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.  The decision does not break new ground, but it does clarify the rules governing conflicts between two current clients of a law firm – i.e., that a law firm may not act for clients with directly adverse legal interests, even in matters that are unrelated, without the client’s consent.  That “bright line” rule had been the subject of debate and argument amongst the Canadian legal community, with the Canadian Bar Association arguing that the bright line should only create a rebuttable presumption.  The Supreme Court held that the rule was still in place.  At the same time, they arguably qualified its application insofar as they made it clear that “the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” (para 37).  In addition, they were clear that disqualification of the law firm is  not an automatic response to a finding of conflicts.  Disqualification is required where there is a risk of misuse of confidential information, to avoid the risk of impaired representation or to protect the administration of justice.  When the last of those is at stake the Court may take into account “(i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.” (para. 65)

For the rest of her post, click HERE

For the judgment, click HERE