Law Times

Law Times • OcTOber 24, 2016 Page 5 www.lawtimesnews.com NEWS Ruling affirms lawyers can act for their employees BY MICHAEL MCKIERNAN For Law Times L awyers who act for their employees in legal mat- ters can breathe easy after a husband's failed attempt to get his former wife's counsel removed from the re- cord because she worked as the firm's receptionist, according to a Barrie, Ont. family lawyer. Following her separation from her husband in 2011, Laura Leach worked part time at the law office of her lawyer, Ellen An- derson of Innisfil, Ont. firm An- derson Adams. However, when Leach was hired on full time in 2015, her former spouse Kenneth Leach took umbrage at the move, and shut down negotiations over a spousal support dispute until Anderson removed herself from the record, according to a deci- sion by Ontario Superior Court Justice John McDermot. In his Sept. 30 decision dis- missing the husband's motion to have Anderson removed, McDermot noted that he could not find any specific cases that addressed a lawyer's alleged con- f lict due to an employment rela- tionship with a client. "I'm not surprised there were none, because they would have lost, in my opinion," says family lawyer Trevor Owen, who argued the removal motion on behalf of Anderson and Laura Leach. Still, Owen, who practises at Barrie firm Owen & Associates Law PC, says he's pleased to see a court weigh in to confirm his view. "This is a precedent-setting case that will be used by lawyers in many practice areas," he says. At his own firm, Owen says, it's not unusual for administra- tive staff to receive legal services from the lawyers in office when buying or selling a house, mak- ing a will or even in some family law matters. At firms with a dif- ferent practice area focus, such as a personal injury law firm, he says he would be shocked to see an employee take his or her case to a competitor. "Lawyers have acted for peo- ple on their staff in many areas forever. It's just that nobody has ever had the gall, frankly, to challenge a law firm's right to represent an employee," Owen says. "Law firms don't pay badly in the market, but there are oth- er places where you can make more money. One of the benefits of working for a lawyer is that, hopefully, he or she will look out for you when you need it." According to McDermot's judgment, after their separation in 2011, the couple reached an agreement on child support that saw Kenneth Leach paying his wife $4,500 per month based on his $145,000 income. However, things went off the rails when he lost his job, and they could not agree on a new child support rate once he landed full-time work at a new employer in July 2015. Around the same time, Ken- neth Leach brought his motion asking for Anderson's removal after becoming concerned that the lawyer's attitude toward the case changed once his wife was hired full time. He argued that the relationship change coin- cided with Anderson becoming more aggressive and unreason- able in negotiations, and that she had placed herself in a "personal interest conf lict" by becoming so close to her client that it im- paired her judgment. McDermot agreed that the tone of the negotiation was "neg- ative and aggressive through- out," but he added that this is not unusual in family law disputes, "especially so where the lawyer's integrity is impugned as part of that discussion." In his review of the case law on personal interest conf licts, the judge noted that almost all the cases that resulted in remov- al involved an intimate or sexual relationship between lawyer and client, and he wrote that he did not find it in the interests of jus- tice "to extend the definition of a conf lict to prohibit counsel from acting for an employee. "The evidence does not sup- port a change in the behaviour of Ms. Anderson after the employ- ment relationship began, and I suspect that Mr. Leach would otherwise feel that he would be well rid of Ms. Anderson, and would be able to quickly negoti- ate a reasonable agreement were she out of the picture. That is no reason to remove counsel from the record. I do not find that there is a conf lict of interest suf- ficient to remove Ms. Anderson as solicitor for the Applicant," McDermot added. Russell Alexander, a Lindsay, Ont.-based family lawyer, says he thinks McDermot got the call right. "You can see how a familial or intimate relationship with a client is going to cloud a law- yer's judgment," he says. "But if you're acting for a law clerk or an employee, I think it's highly unlikely that you're going to put your professional reputation on the line for that relationship." However, Alexander says he also agrees with another of Mc- Dermot's comments, in which he suggested that Anderson would have been best advised to hand over Laura Leach's file to another lawyer. "In terms of efficiency, it may have been a good idea for her to step back and save resources and time, instead of having this issue take on a life of its own," Alexan- der says. Barrie lawyer Tom Dart, who argued the motion on behalf of Kenneth Leach and his lawyer Janice Younker, said in a state- ment that he was "unable to comment on the decision at this time." Owen says the bar to removal of opposing counsel is set rightly at a high level. "The lawyer for the other side in litigation is frequently not loved. I've never had a Christ- mas card from anyone on the other side, but that's something that goes with the territory," he says. LT Russell Alexander says lawyers should be able to act for their clerks or employees. REGISTER ONLINE www.lexpert.ca/cpdcentre For more information, please contact Lexpert® at 1-877-298-5868 or e-mail: lexpert.questions@thomsonreuters.com EXECUTIVE PROFESSIONAL DEVELOPMENT FULLY ACCREDITED IN-CLASS PROGRAMS & LIVE WEBINARS 4th Annual Conducting Effective Workplace Investigations Unearthing the Truth: Dig Deeper with Workplace Investigations Sarah Graves Partner, Fasken Martineau DuMoulin LLP Toronto & Webinar November 8 Drafting and Negiotiating Effective Cloud Computing Agreements Get Ahead in the Cloud Lisa R. 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