Law Times

PAGE 10 FOCUS FEBRUARY 1, 2010 / LAW TIMES Alleged conflict had whiff of 'strategy and tactics' O BY ROBERT TODD Law Times ntario's Superi- or Court recently weighed in on the contentious issue of when to remove a lawyer in a family law case due to a conflict of interest. Justice Ellen Macdon- Rachelle wanted prominent family law boutique Niman Zemans Gelgoot LLP (NZG) removed as solicitors of record for a matrimonial action involv- ing her husband Jeffrey Tauber. She cited a seven-minute, return call from NZG lawyer Harold Niman in June 2009. At the time, she was thinking about switching lawyers and during Niman in November 2009. In court, Rachelle refused to reveal to the court the content of her discussion with Niman, saying it contained confidential information. Macdonald framed the stakes involved in the motion in part by citing a factum from Jeffrey's counsel on the issue. It stated, "If the motion is granted, it you. This could be done inten- tionally or inadvertently." The judge added: "The community of the family law bar in Toronto and elsewhere in Ontario is a small one, especial- ly for lawyers of the notoriety and experience of Mr. Niman." The judge turned to a test set out in the leading case on the issue of disqualifying con- They could be poisoned by truly confidential information without being retained and be disqualified from acting on the other side of a case, and I think it is for that reason necessary to be cautious and even defensive about how much information you've received or allow yourself to be impressed with before you're retained. ald issued a strongly worded endorsement in the case of Tauber v. Tauber. The judge ruled that Rachelle Tauber's motion to have opposing counsel removed based on a conversation she had had with the lawyer about taking her case seemed to come with a whiff of "strategy and tactics." the phone conversation arranged an appointment to visit Niman later that week. But she later decided to stick with her lawyer and cancelled the appointment. Niman didn't take notes on the phone chat nor did he send an account or open a file relating to it, according to the judgment. Meanwhile, Jeffrey retained Family titles FAMILY LAW An easy to use electronic service that keeps you up-to-date with the latest decisions in family law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the family law area. Visit www.canadalawbook.ca to "Access Online Products" for your free trial. Annual subscription price $410 • P/C 0534700999 $23 for each additional recipient Child Support Guidelines Service Provides a full analysis of the , giving you the best chance for a clear understanding of the financial obligations of divorcing parents to their children. 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Perfectbound • 896 pp. • Published April each year On subscription $76 • P/C 0823140000 One time purchase $86 • P/C 0823010000 • ISSN 1198-211X would be a simple matter, par- ticularly in smaller communi- ties, to preclude a recognized expert from acting against you by merely calling them and allegedly volunteering enough information about your case to allow you to say later, without having retained that lawyer that he or she cannot act against flict of interest, MacDonald Estate v. Martin, in outlining why Rachelle's motion must, in her opinion, fail. Noting that Rachelle and Niman hadn't established a solicitor-client relationship, Macdonald ruled the lawyer didn't receive any confidential information in the conversation and that "there is a concern that there is an element of strategy and tactics underly- ing this motion." The judge went on to state: "Ms. Tauber refuses to disclose the information that she gave to Mr. Niman. Ms. Tauber's asser- tion that she revealed confiden- tial information to Mr. Niman (without disclosing it) impedes Mr. Niman's ability to fully respond to her allegations and to this court's ability to determine whether any confidential infor- mation was in fact disclosed." The judge fixed costs for the motion to Jeffrey at $10,000. Counsel for Rachelle didn't respond to a request for com- ment on the decision. Niman, meanwhile, declined to speak about it, instead referring ques- tions to his lawyer on the mat- ter, Terry O'Sullivan of Lax O'Sullivan Scott LLP. "As a boutique, we do a fair number of disqualifica- tion motions where we rep- resent other law firms," says O'Sullivan. "This is the first case that I have seen [that's] based on both a brief telephone conversation in particular and in circumstances where the would-be client refused to give the confidential information." O'Sullivan notes the courts often have suspected tacti- e cal motivations behind legal motions. But he wonders whether judges have become "more wary" of the possibility and, as a result, are heavily scru- tinizing evidence to rule it out. Meanwhile, O'Sullivan fears lawyers without the experience of Niman could find it more challenging to fend off a similar motion for removal from a case. "They could be poisoned by truly confidential information without being retained and be disqualified from acting on the other side of a case, and I think it is for that reason necessary to be cautious and even defensive about how much information you've received or allow your- self to be impressed with before you're retained." Nevertheless, Gary Steinberg of Steinberg Rockman in Otta- wa says there are few ways for counsel to protect themselves from this type of scenario. "There really isn't much way For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. CA091 (LT 1-2x4).indd 1 www.lawtimesnews.com CA091 1/27/10 9:47:27 AM of protecting yourself from it," he says, noting that even if a lawyer asks for a retainer when clients first come into the office, they may still return a few days later having changed their mind and asking for the balance of the money back. Steinberg, who has had simi- lar scenarios play out in his own office, doesn't see what could change to curb the problem. "It would be exceptionally difficult to formulate rules that would be effective because you would have to be able to read a person's mind to know what their motivation is behind com- ing to your office." LT Editor: James H The Honourable Justice Mary Lou Benotto Founding Editors: The Late H erbert Pensions Consultant: Ben Dibben . Douglas S tewart, Q.C., Federal Child Support Editor: Terry W. H ainsworth Federal Child Support Guidelines Terry W. H ainsworth Guidelines Terry W. H ainsworth Consulting Editor: Elliot S . Birnboim Michael G. Cochrane r r r r V V i i f f s s i i y y t t r r o o u u b b w w e e e e b b s s i t i i t i n n F F r r u u a a o o a a

• Cover
• Boycott Ends
• Judicial Retirement
• Focus On Family Law/Trusts and Estates