• I " Cite as: Lasch v. Annapolis County (Municipality), 1992 NSCO 47 1990 C . AR. No. 02514 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: NICK LASCH PLAINTIFF - and THE MUNICIPALITY OF THE COUNTY
OF ANNAPOLIS, a body corporate
DEFENDANT HEARD: At Annapolis Royal, Nova Scotia, on the 10th day of November, A.D. 1992 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. SUBJECT: Application for an Order Restraining Counsel DECISION: The 1st day of December, A.D. 1992 COUNSEL: W. Bruce Gillis, Q.C., Esq., for the Plaintiff David A. Miller, Q.C., Esq. and John Cameron, Esq. for the Defendant DEC I S ION
, . ·' HALIBURTON, J.C.C. This application is Plaintiff, Nick Lasch, seeking a declaration that John Cameron, the solicitor for the Defendant Counsel in conducting the Defence in this particular action be . declared ineligible to continue representing the Municipality on the basis of a conflict of interest. The action is brought wrongful dismissal by the Municipality by whom as Director of Planning. The allegations of mala fides and improper motives on the part of the municipal authorities in connection with his discharge. short, his claim against the Municipality is, in part, based on the proposition that his dismissal Warden and others who improperly and intentionally set the stage for his dismissal. While the solicitor of record in the conduct of the action is David Miller, Q.C., Stirling Scales, he is assisted by John Cameron who, since 1988, is Municipal Solicitor and, according herein, the Municipality desires involved in the conduct of the action because of his familiarity with the history of the subject matter. The other salient facts in brief are that on September 2nd, 1986, the Plaintiff consulted Mr. Cameron, seeking from him professional advice as to his appropriate response to recently received from R. H. brought on behalf of the Municipality and associate by the Plaintiff claiming he was employed statement of Claim includes In was "engineered" by the of the firm Stewart McKelvey to a letter on file to have him continue to be a letter Sanford, then Warden of the
, , - Municipality, alleging unauthorized moneys. Mr. Cameron gave advice, which he apparently paid, and the Plaintiff responded to the Warden's inquiries. Mr. Cameron date, detailing his services as follows: To consulting with you condi tions of employment; terms and conditions of letter in reply For Mr. Cameron's part, it is argued that there is no conflict of interests in fact. solicitor/client relationship"; Lasch and Mr. Cameron constituted an isolated retainer related exclusively to the problem involving account and that the brevity engagement are reflected by the minimal fee charged. It is simply coincidence and the function of bar in the County of Annapolis Lasch/Cameron consultation, Mr. Gillis, Plaintiff, was on retainer as Municipality. The disposition three questions be answered: (1) Was there a solicitor/client ~elationship Plaintiff and Mr. Cameron? (2) Did the solicitor receive confidential information arising from that relationship which action? 2 use of travel expense charged the P] aintiff $20 rendered an account on that concerning the terms and to discussing with you the There was "no ongoing the consultation between Mr. his employee expense and simplicity of the terms of of $20 which was a small that at the time of the now sol ici tor for the solicitor for the Defendant of this matter requires that between the is relevant to the present
- (3) Is there a risk that such information would be used to the Plaintiff's (former client's) prejudice? Both parties have filed affidavits in connection with this matter and the Plaintiff has The relevant clause in the Plaintiff's Affidavit is paragraph No.3: 3. THAT I attended at Mr. to him at great length about ranging discussion in relationship with the Warden Council, my concerns as to the pressure being placed on me to carry out the administration Planning and Development Regulations way that was not consistent with them, the conflicts in direction I the various people at various times, advice as to how to deal with these concerns. Mr. Cameron's affidavit in response says, at paragraph 4 : 4. THAT on September 2, 1986, capacity as a barrister and solicitor by the Plaintiff herein, respecting a letter forwarded to him under signature of H. Robert Sanford, warden of the said Municipality, alleging certain irregularities in travel expense claims and requesting a written reply; a copy of this letter is hereto annexed as Exhibit "A" to this my affidavit. 6. THAT during the course of recollection there was only incidental reference to Mr. Lasch's employment relationship. 7. THAT our discussion was accou~in the amount of paid. 9. THAT at various times, municipal solicitor, Mr. Lasch some length his employment situation and relations with the members of the municipal council. any of these discussions solicitor-client relationship. 3 given viva voce testimony. Cameron's office and spoke my concerns in a wide which we discussed my and other members of of the County's and By-Laws in a my understanding of was being given by and seeking his I was consul ted in my Nick Lasch, our discussion, to my relatively brief and an $20.00 ... was rendered and primarily after I became discussed with me at At no time were in the context of a
, . - In his viva voce evidence, consultation between he and Mr. and a half and two hours. He reiterated the assertion in his Affidavit that it was a wide ranging discussion dealing with the terms of his employment in general "incidental reference"; that specifically about his understanding of his duties in relation to the Subdivision By-Laws and Regulations and the attitude of the Municipal Council to them. reference to comments made by the local M.L.A. with respect to his work and, what I take it, was Mr. Lasch and the M.L.A., as wives and families of Messrs. Lasch and Cameron. Lasch conceded that he with Mr. Cameron in his capacity as Municipal Solicitor after September of 1988. He was well aware of Cameron's but he said that after his appointment, any discussion of his (Mr. relationship. He testified that he other occasions at other places Municipal Solicitor, and after, other matters of mutual interest lawyers in the county_ September 2nd was the only occasion on which he had been billed by Mr. his discussions with him. 4 Mr. Lasch testified that the Cameron had lasted between one and was not conf ined to an he and Mr. Cameron spoke Their discussion included some a perceived animosity between well as talk of the respective had had numerous discussions appointment Mr. Cameron It avoided" Lasch's) employee/empoyer had talked to Mr. Cameron on before his appointment as about subdivision rules and as he had talked to other Cameron with respect to any of
- That there was a solicitor/client relationship between Messrs. Lasch and Cameron and that such is obvious. There is no need to consider that first question further. THE AUTHORITIES Both Counsel have advanced the case MacDonald Estate v. Martin and Rossmere Holdings (4th) 249, (1991) 121 N.R. 1 as subject of solicitors' conflicts. succinctly sets forth the competing values which must be weighed in making a finding on this type of application: "In resolving this issue, the court is concerned with at least three competing values. the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that litigant should not be deprived of his or her choice of counsel without good cause. desirability of permitting reasonable mobility in the legal profession ... " In his concurring judgment, have imposed a stricter duty upon lawyers to satisfy the Court that there is no conflict, either real or perceived, in respect of their duty to ~epresent their clients. at page 271: ... Neither the merger of law firms nor the mobility of lawyers can be permitted public's confidence in the judicial system. time, when the work of the courts is significant impact upon the lives and affairs of all Canadians, it is fundamentally not only be done, but appear to be done in the eyes of the public. 5 a relationship existed (1970) Ltd. (1990) 77 D.L.R. being the leading case on the In it, Mr. Justice Sopinka There is first of all a Finally, there is the Mr. Justice Cory would He said these words to adversely affect the At this having a very important that justice
- My colleague stated that this balancing of three competing maintenance and integrity of our system of justice; the rights of litigants not to be lightly deprived of their chosen counsel; and the reasonable mobility in the legal profession. Of these factors, the most important and compelling is the preservation of the justice ... The Nova scotia Barristers' Society has adopted a code of professional conduct as Professional Conduct, a handbook Chapter 6 of which deals with interests between clients. interests and the lawyer's appropriate conduct in relation to it. I find the notes appearing at page present context, citing as authority Spector v. All E.R. 417. The text says: "What he cannot do is to act for the client and at the time withhold from him any relevant knowledge that he has ... " And later, citing Sinclair v. Ridout [1955] O.R. "It is the duty of a solicitor- ... (8) the opponent of his client, or of a any case in which his knowledge of the affairs of such client or former client advantage ... ' This is a principle of ethical standards that admits of no fine applied in its broadest difference whether the solicitor was first acting for two parties jointly who became involved in litigation over the subject-matter of his j oint retainer, or respect to a matter and party against his former client about the same matter." And at page 28 citing Fisher v. Fisher (1986) (T.D.) among others: 6 appeal called for the values, namely: the desirability of permitting integrity of our system of outlined in Legal Ethics and for Lawyers in Nova Scotia, impartiality and conflict of The text defines conflicting 27 interesting in the Ageda [1971] 3 167 at 182-83: not to act for former client, in will give him an undue distinctions but should be sense, and it makes no subsequently disagreed and acted for one party with took up a case for another 73 N.S.R. (2d) 181
- Decisions in several recent cases have focused upon the appearance of professional situations in which a solicitor acting against a former client might have received from that former client. In Fisher v. Fisher, one member of the law firm had given advice to Mrs. Fisher, including a suggestion that counsel. An associate was subsequently found to be ineligible to represent the opposing party. associate had no knowledge either of the consultation or of any information which Mrs. Fisher might course of that consultation. question but that Mrs. Fisher had disclosed relevant information during that interview. It seems that because of the appearance of the possibility that information associate to the other, the firm was disqualified. Madam Justice Glube reviewed a in a recent decision J. Cameron Widrig v. No. 81206, June 26th 1992, in which she quotes extensively from MacDonald Estate v. Martin and (supra) also known as Martin decision): ", .. In dealing with the confidential information we that is usually not susceptible of proof. out by Fletcher Moul ton, L, J., in Rakusen, thing which you cannot prove' (at p. 841). 'or disprove'. If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be occasioned. susceptible of proof, the test must public represented by the 7 impropriety created in confidential information (My emphasis added) she obtain other It was not questioned that the have communicated in the On the other hand there was no might be passed from one number of these cases Cox Downie et al S.H. Rossmere Holdings (1970) Ltd. v. Gray (from page 10 of her question of the use of are dealing with a matter As pointed 'that is a I would add Since, however, it is not be such that the reasonably informed person
- would be satisfied that information would occur. overriding policy that applies court in answering the disqualifying conflict of interest? must be stressed that this conclusion is predicated on the fact that the client does objecting to the retainer alleged conflict. (From Madam Justice Glube's decision at page 11, citing page 30:) " ... In my opinion, once it is shown by the client that there existed a previous sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be difficult burden to discharge. court's degree of satisfaction be such that it would withstand the scrutiny member of the public that no but the burden must be discharged without revealing the specifics of the privileged Nonetheless, I am of the opinion that the door should not be shut completely on discharge this heavy burden." " ...A lawyer who has relevant confidential information cannot act against his client or such a case the disqualif ication assurances or undertakings will avail ... " "A fortiori undertakings and conclusory statements in affidavits without more are not acceptable. be expected in every case before the court. It is no more than the lawyer saying 'trust me'. This puts position of deciding which and which are not .•. " One point I think situation such as the present. brief for a new client, is profession to utilize all his skill and training together with all his knowledge. accumulated 8 no use of confidential That, in my opinion, is the and must inform the question: Is there a In this regard, it not consent to but is which gives rise to the relationship which is relevant. This will be a Not only must the of the reasonably informed such information passed, communication. a solicitor who wishes to former client. In is automatic. No not to use the information These can of this kind that comes the court in the invidious lawyers are to be trusted (My emphasis added) needs to be emphasized in a Counsel, having taken on a new obliged by the ethics of our from whatever source for the
- benefit of his client. Any information which has knowledge through his contacts in the community or through his previous experience in his professional office, he must place at the disposal of his client. To his services conditional and obviously lose any credibility if the present client were not assured that their solicitor's knowledge was not at their disposal. his retainer, then, Mr. Cameron is under for the benefit of the Municipality in this cause of action any knowledge of the facts disclosed and the attitudes displayed by Mr. Lasch in the course of that consultation. Was the solicitor/client this litigation? The Plaintiff says it was effect. Mr. Cameron has filed an affidavit in effect saying he has no recollection of relevant specifics being discussed. Justice Sopinka says the burden on the Counsel is and difficult to displace. Mr. Justice Cory appears to consider that burden virtually impossible matter of the consultation related specifically to the terms of the employment of Lasch by the Municipality and the difficulties which he was then experiencing as an employee. that the conference lasted at least an rebutted, notwithstanding the which, in its own terms, appears to establish the Plaintiff's point: "To consulting with 9 come to his do otherwise would be to make limited. The profession would complete store of skill and To fulfill the terms of an obligation to use communication relevant to and has testified to that Mr. a heavy one to displace. The subject His assertion hour and a half is not very modest account rendered you concerning the terms and
- conditions of employment ... " Excepting the assertion that there was a wide ranging discussion on his employment It, the denial (to paraphrase Sopinka) than the lawyer saying 'trust me'''. My sense of the appropriate onus to be placed on the respective parties in dealing with such an application as this after reviewing the various cases to which I've been referred by Counsel is that the Court's discretion is to such a way that tla reasonably informed would be satisfied that no relevant information has passed from the former client to the lawyer benefit to his present client in the action against the former. The final question to be put is, if such information did pass from Lasch to Cameron, is there a be used for the benefit of his present client? As already indicated, it is my information did pass, then he is obligated to use it for benefit of his present client. Having reached these application. Mr. Cameron will be disqualified. DATED at Digby, Nova Scotia, this 1st day of December, A.D. 1992. JUDGE OF DISTRICT NUMBER 10 the subject of "the terms of .. is no more be exercised in member of the public" which could now be of any danger that it might view that if any such the conclusions, I allow the OF THE COUNTY COURT
THREE
- 11 ...
TO: Mrs. Patricia Connell Clerk of the County Court P.O. Box 129
Annapolis Royal, Nova scotia
BOS lAO
Mr. W. Bruce Gillis, Q.C.
Durland, Gillis & Parker
Barristers, Solicitors, Notaries
P.O. Box 700
Middleton, Nova Scotia
BOS lPO
Solicitor for the Plaintiff
Mr. David A. Miller, Q.C.
Stewart McKelvey Stirling Scales
P.O. Box 997
Halifax, Nova scotia
B3J 2X2
Solicitor for the Defendant
Mr. John R. Cameron
Orlando & Hicks
Barristers & Solicitors
P.O. Box 639
Bridgetown, Nova Scotia
BOS lCO
Solicitor for the Defendant
CASES AND STATUTES CITED: MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd. (1990) 77 D.L.R. (4th) 249, (1991) 121 N.R. 1 Legal Ethics and Professional Conduct (A Handbook for Lawyers in Nova Scotia), Chapter 6 Spector v. Ageda [1971] 3 All E.R. 417 Sinclair v. Ridout [1955] O.R. 167 at 182-83 Fisher v. Fi her (1986) 73 N.S.R. (2d) 181 (T.D.) J. Cameron Widrig v. Cox Downie et al S.H. No. 81206, June 26th, 1992
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