Law Times

PAGE 2 NEWS AUGUST 25 / September 1, 2008 • Law times CBA hopes law societies embrace report Continued from page 1 law matter. And he said lawyers who take on duty-counsel roles can compromise their ability to represent legal aid clients. The report's first five recom- mendations deal with the duty of loyalty. Jolliffe noted that a pair of recent Supreme Court of Canada decisions, 2002's R. v. Neil and last year's Strother v. 3464920 Canada Inc., defined a "conflicting interest" as "an interest that creates a sub- stantial risk of material and adverse effect on representation," and said the task force has taken the stance that this principle underlies the duty of loyalty. But an interpretation of part of Neil, said Jolliffe, has been brought into some law society codes of conduct and led to confusion in other jurisdictions. Some think Neil means a lawyer "should never act when the representation of one client would be directly adverse to another client," said Jolliffe. But the task force found that if a pair of matters are not relat- ed, and no significant risk of a negative effect on representation exists, it shouldn't necessarily mean that a lawyer is in a conflict if acting for a client with adverse interests to another client. In terms of duty of loyalty upon expiration of a retainer, the report finds that a lawyer should be able to act for a new client with adversarial interest. But, noted Jolliffe, confidential information must always be kept private. Recommendations six through 12 of the report deal with duty of confidentiality. The report notes that a distinction must be made between the mis- use of confidential information and a conflicting interest. "The distinction is impor- tant," said Jolliffe, "because the duty of confidentiality contin- ues forever, whereas the duty of loyalty, for the most part, ends when the retainer ends." The report notes that law firms keep confidential informa- tion separate from lawyers work- ing on potentially conflicting files. The report asserts that a delay in setting up a confidenti- ality screen should not prevent a lawyer from acting, so long as it can be proven that confidential information was not released. A number of factors, the report states, should be considered in such circumstances before a confidential breach is assumed. Aspects such as the interest of justice and good faith of parties are examples. The report also deals with con- fidentiality screens in terms of law firm mergers. It states that a screen should only be required when merged firms begin sharing client information. The often-tricky question of just who the client is was also dealt with by the task force, in recommendations 13 to 17 of the now-adopted report. Noting that confusion sometimes aris- es within corporations, where directors, shareholders, and employees may think they're cli- ents of the law firm representing the company, the report says codes of conduct should outline exactly whom a lawyer is bound to duties of loyalty and confi- dentiality. The final amendment made to the CBA's code of conduct deals with engagement letters. It presses lawyers to use engagement letters Clarification An article in the July 28/August 4 edition of Law Times regard- ing a Divisional Court ruling involving the Ontario Securi- ties Act included information that may have been unclear. The Investment Dealers Association, one of the Ontario Securities Commission's self-regulatory organizations, began disciplinary proceedings against Stephen Taub in October 2005. to make clear to clients the rela- tionship they're entering into. Jolliffe tells Law Times he knew it was time for the CBA to take action on conflicts of inter- est after twice being asked to speak on the issue to managing partners at conferences. "It became apparent to me that there was a great deal of confusion, and we had a conflicts regime that was not simply con- fusing and difficult to understand, but impractical," says Jolliffe. He says lawyers have been using these "very technical" rules as a tac- tic in legal actions. Many are bring- ing motions to disqualify opposing counsel to "delay a case, to cause confusion, to put the opponent off its game, so to speak, by forcing them to change counsel." Jolliffe says one of the chal- lenges the task force faced was creating rules that could be applied universally in a country where big- city and rural practitioners, as well as those practising in different spe- cialties, face different realities. The task force dealt with that by visiting different communities and types of practitioners, and com- promising where necessary, he says. For example, while the group ini- tially hoped to make engagement letters mandatory, it shifted course after being told that policy would be impractical for lawyers working with illiterate clients or those who speak foreign languages. The report received wide approval at the conference, and appeared to pass unanimously at CBA council. However, legal ethics specialist, and former Law Society of Upper Canada trea- surer, Gavin MacKenzie, in an interview with Law Times, ques- tioned the report's fourth recom- mendation, which allows lawyers to act on matters adverse to the interests of a current client in certain circumstances. "The task force analyzed the Neil case and concluded that that recommendation was consistent with the decision in the Neil case, bearing in mind that what the Supreme Court of Canada said was obiter," the Heenan Blaikie LLP partner says. "It's not entirely clear that the Supreme Court of Canada would regard it the same way, so that even if law societies adopt the CBA task force's recom- mendation, unless and until the Supreme Court of Canada adopts the CBA task force's recommen- dation, lawyers in firms are still going to be in the position of having to decide whether to act on matters, in some circumstanc- es, where the Supreme Court of Canada may well say it's a breach of their fiduciary duty." LT There was 'no doubt' as to Schofield's innocence Continued from page 1 Her father says the inmate testified he already had the drugs on him prior to their meeting. In fact, at the prelim the pris- oner showed the judge how he was able to conceal drugs in his shorts during strip searches; he dropped his pants to reveal how he had managed to smuggle wad- ded papers inside a sock pouch in his underwear into court that day, despite two searches. Boucher says he's not aware of any investigation into the guards who testified at the pre- liminary inquiry. Carol Schofield, Edmund's wife of 49 years, suggests the Don Jail be retrofitted to prevent a similar incident. She says a pane of glass should separate lawyers from prisoners during interviews. She says she was "very relieved Marketplace FOR RENT FOR RENT - Exclusive office, full service within North York CA firm. Available immediately. Please call Saveria Raffin 416-631-9800. EXCLUSIVE - Office for Rent - lovely second floor office (approx. 300 sq. feet) located in charming Victorian style three-storey house huge win- dows overlooking mature tree-lined street right next door to Yorkville available October 1, contact Clayton Ruby or Mandy Machin at 416-964-9664 or mandy@ruby-edwardh.com. To advertise call 905-841-6481 that this is all over." But not without "a few issues," including that it took "17 months for this thing to be resolved." She adds: "Maybe someone should do a big investigation of how drugs are getting into the Don Jail . . . Ed is the last person in the world who would ever take them in. "I couldn't believe it," she says of when she heard of the charges right after she'd had hip replacement surgery. "I thought it had to be a mistake." In an interesting twist, Scho- field was represented on the case by Lawson, his former le- gal assistant/law clerk. Lawson worked for him from 1983 to 1986, during which time she did everything from his typ- ing and billings to appearing in court to set trial dates. Lawson moved on to work as O'Connor's law clerk, where she decided she wanted to become a lawyer. But being a single mother, she had to put her dream on hold. Years later she began preparing for law school, and eventually got into Osgoode Hall Law School as a mature student in 2004 at age 48. It was only the second time she had worn her gown when Lawson — called to the bar in June and now a law partner and wife of O'Connor — appeared in court to represent Schofield. Lawson says it was reward- ing to be able to help her for- mer boss, whom she describes as someone who would do the same thing for anyone else. "He's just phenomenal. He'd give anybody the shirt off his back. He's very kind and thought- ful," says Lawson of Schofield. She notes that O'Connor, who represented Schofield at the prelim, after a new surety stepped forward so that he could act in the case, asked one of the guards if he'd had any prior con- tact with the accused. "He said, 'Yes, as a matter of fact I had,'" she recalls. The witness went on to tell a story of how at one time he was guard- ing a hospitalized inmate repre- sented by Schofield, who would visit the prisoner and bring him lunch and coffee. "That's just the kind of guy he is," says Lawson. Schofield says he has received support throughout the ordeal from people in all walks of the jus- tice system. He says he got hugs and kind words from defence lawyers, prosecutors, justices of the peace, and court clerks after news of his acquittal circulated. "It's one way to find out who your friends are," says Schofield. "And they're all over the lot . . . Everybody that's in the business has been totally supportive." Lawyers Edward and Brian Greenspan, who happened to be at the 361 University Ave. courthouse on an unrelated matter across the hall, shook hands with Schofield and con- gratulated him. The brothers said they offered themselves as character witnesses as soon as they heard of the charges. Moments after the acquittal, Brian Greenspan called Scho- field "a fine lawyer . . . and per- son of real integrity." Edward Greenspan agreed wholeheartedly, adding that as for visiting the Don Jail, if law- yers are "able to go in with more than one person you try to." Lawyer Michael O'Neail, who was asked by Schofield to call his daughter on the night of the arrest, also attended court to support his friend. "They couldn't have picked a worse guy as far as getting a con- viction because his reputation is impeccable," says O'Neail. "There was no doubt whatso- ever of his innocence." Schofield, who spent the morning of his acquittal run- ning between three courthouses to represent clients, planned to celebrate later that day with a vodka and tonic — after spend- ing the afternoon in court rep- resenting another client. When asked if he'll go into the Don Jail again, Schofield pauses: "Probably not," he says. — With files from Gretchen Drummie LT WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM

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