Law Times

LAW TIMES • MARCH 10, 2014 PAGE 5 www.lawtimesnews.com ther eby precluded from repre- senting opposing parties in the litigation." Govedaris maintained he discussed litigation strategy with Davis, whereas Davis' position was that he responded to the questions only with general in- formation about civil procedure in mortgage actions. Price ruled no solicitor-cli- ent relationship arose between Govedaris' clients and Davis be- cause Govedaris didn't disclose confi dential information to him. Govedaris also hadn't established that he had identifi ed the litigants in his conversation with Davis. "Mr. Davis asserts that if Mr. Govedaris had mentioned Mr. Davis' client of 20 years during the discussion, he would have ended the discussion," wrote Price. "I accept his evidence in this regard." ere was also no evidence Govedaris had sought "legal ad- vice" from Davis, as that expres- sion applies in the context of the law of privileged communica- tions, or that Davis owed Gove- daris' client a duty of care. "While a client's relationship with a senior lawyer who pro- vides information to the client's own lawyer is arguably more proximate than the client's rela- tionship with an opposing lawyer who provides such information, I fi nd that neither type of consulta- tion, by its nature, gives rise to a duty of care," wrote Price. "It is the client's own lawyer who owed the duty to his client, plain and simple. It is that lawyer who must weigh what he is told by another lawyer, whether it be an opposing lawyer or a senior mem- ber of the bar whom he consults." As Price saw it, a fi nding that a lawyer consulted by another counsel and who provides gen- eral assistance without receiving confi dential information can't then represent any party with an adverse interest to the client in question would have an "unwar- ranted" and "chilling" eff ect. In addition, there was no duty on Davis to embark on a confl icts check before giving his advice, the judge found. " e myriad of places, times, and circumstances in which such requests [for advice] are made, in- cluding taxi cabs, restaurants, and parking lots, makes it impossible, in many cases, for the recipient of the request to run a confl icts check before responding," wrote Price. e upshot, Price concluded, was that the consultation didn't disqualify Davis from represent- ing Great Lakes Cooper and 3072453 Nova Scotia. "A lawyer who receives a re- quest for legal information from a more junior or less experienced colleague is entitled to assume, unless alerted either explicitly by the lawyer calling, or implicitly, by the confi dential nature of the information imparted, that the consultation will not give rise to a confl ict of interest or impose liability on the recipient of the request," wrote Price. "To hold otherwise would have the eff ect of discouraging a sharing of general information that is benefi cial to both the pro- fession and the public." Gavin MacKenzie of Davis LLP's Toronto offi ce, an expert on professional responsibility and ethics, agrees with both the rea- soning and the result in the case. " ey strike me as very sen- sible," he says. "In fact, I am surprised that the motion was brought on these facts." e opposite result, says MacKenzie, would have de- prived litigants of their counsel of choice and discouraged se- nior and specialized practitio- ners from providing advice to junior colleagues and general practitioners. " at would hardly be in the public interest," he says. Still, MacKenzie suggests lawyers approached in these circumstances insist their col- league discloses no confi dential information. LT 'The sky hasn't fallen in Australia,' says bencher NEWS DRAWING THE LINE: Using the Surveyor as Expert Witness The half-day workshop to be held Friday, April 25, 2014 at the Delta Guelph Hotel & Conference Centre will build on the e-learning course material with mock hearings, practical demonstrations and discussions addressing: x the qualification of an expert; x the cross-examination of an expert for impartiality; x the specific skill sets held by surveyors; and x ethical obligations. The fee for 3 months of online access to material and the recording is $475 plus HST. Register at 4pointlearning.ca. The workshop has been accredited by for 0.75 Professionalism hour and 3.25 Substantive hours. 4Point_LT_Mar10_14.indd 1 14-03-04 6:15 PM ǫ ± ǣ ǡ²ǡ±ǡǡǡ ǡ°ǯǡǤ 1 Untitled-4 1 14-01-31 12:26 PM Continued from page 1 No evidence lawyer sought 'legal advice' process restrict consultation on the matter. "When you're only taking four options to people, is it really consultation?" she asked. But according to Mercer, the four op- tions are in fact a broad question that will gauge whether or not the bar supports non-lawyer ownership in general. "What the four ask is, really, 'Do you, and to what extent do you, support non-lawyer own- ership?'" he said. In the end, Hare supported the motion, saying, "I have been convinced." But there were also benchers who didn't need convincing during the debate. " e sky hasn't fallen in Australia because of [alternative business structures]," said Bencher Peter Wardle, who noted it's time the legal industry caught up to the "sophis- ticated" ways the rest of the business world is moving towards. "We are constrained right now by what is eff ectively a 19th-century structure that lawyers in this province can only associate in sole proprietorships and general part- nerships with some variations. And that's the real problem," he said. " e corporate world has gone on over the last 150 years and we have not and we're living today in an antiquated struc- ture." Bencher Alan Silverstein urged his col- leagues to focus on the fact that the mo- tion's intent is exploration and not a defi - nite stance on what alternative business structures should look like. Part of the motion Convocation ap- proved for consultation also dealt with the issue of compliance-based regulation and regulation of entities. Instead of a regu- latory regime that relies on complaints against individual lawyers, the idea is that the law society should consider regulating law fi rms and other entities that provide legal services based on compliance with the rules. A er 18 months of research, the law society's working group on alternative business structures concluded the status quo isn't an option going forward. In its report, the working group said it "concluded that there are negative con- sequences inherent in current regulatory limitations on the delivery of legal services in Ontario that could be addressed with the thoughtful liberalization of business structures." It added: " e existing tight regulatory restrictions on business structures are not justifi able given the lack of evidence that liberalization will cause harm. " is is coupled with substantial evidence that business structure liberal- ization combined with entity regulation is likely to provide greater fl exibility and more options for both licensees and the public." e four models proposed by the alter- native business structures are: • Permitting up to 49-per-cent owner- ship by non-licensees in entities only pro- viding legal services. • Restricting fi rms to providing legal services but with unrestricted ownership. • Allowing up to 49 per cent non- licensee ownership and permitting fi rms to provide legal and non-legal services except those identifi ed as posing a regula- tory risk. • Permitting unlimited non-licensee ownership and the provision of legal and any other services except where suffi cient regulatory risk arises. LT Continued from page 1

• Cover