Law Times

January 15, 2018

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BY ALEX ROBINSON Law Times A lawyer is warning that solicitor-client privilege may be threatened by a master's decision that barred him from representing his own firm in a dispute over a wrongful dismissal claim. In Teixeira v. Hamburg Ol- son LPC, Master Priti Sugunasiri, of the Ontario Superior Court, removed Toronto lawyer Samuel Kazen from representing Ham- burg Olson Law PC — a practice purchased by his own firm in 2017 — against a wrongful dismissal claim brought by a law clerk, Nilton Teixeira. Sugunasiri found the lawyer was too closely involved in the litigation, as he had "entered the fray as an effected participant" and could not be an impartial ad- vocate. The master also refused a cross motion brought by Kazen to strike certain exhibits that he said were subject to solicitor-client privi- lege. Sugunasiri determined that the defendant had waived privi- lege in a response to information tendered by the plaintiff, in which HOLPC had divulged that Kazen had retained the firm represent- ing Teixeira for a one-time con- sultation in 2010. Kazen says the decision means that if a lawyer violates his cli- ent's confidentiality by publishing privileged information in a mo- tion record, the client is not per- mitted to object to it in a respond- ing motion record or else the cli- ent has retroactively waived the very privilege that he is asserting. He says the ruling renders so- licitor-client privilege meaning- less. "How on earth is anyone sup- posed to assert that his confiden- tiality was violated if he is not al- lowed to refer to the violation in his materials?" he says. "If the decision is not over- ruled, it means no client is safe to discuss anything with his or her lawyer." Teixeira brought his claim af- ter his employment ended with HOLPC in 2017, as Kazen's firm, Kazen Law PC, was set to buy the practice. Teixeira claimed he was terminated after he rejected of- Tribunal finds lawyer committed misconduct BY ALEX ROBINSON Law Times A Law Society of Ontario tribunal has found a real estate lawyer committed professional misconduct by misappropriating more than $1 million. In Law Society of Upper Can- ada v. Piersanti, the tribunal re- lied on court decisions that deter- mined lawyer Christian Piersanti had misappropriated the funds from a paving company with which he was involved. The law society leaned on a trial decision and an appellate ruling that found Piersanti had commit- ted fraud against the plaintiffs. In that matter, Alfano v. Piersanti, the courts found that Piersanti had acted on behalf of four brothers when they incorporated a paving company — Osler Paving Com- pany — in 1993. The Alfanos made Piersanti president of the company and gave him a 10-per-cent ownership in- terest. He then acted for them to es- tablish four family trusts, each with a 22.5-per-cent interest in the company, according to court deci- sions. When one of the brothers with- drew from the company in 1997, the three remaining trusts each held 29 per cent and Piersanti held the remaining 13 per cent of shares. In 2002, Piersanti claimed he owned the company after the re- lationship between the lawyer and the plaintiffs started to sour. He then listed Osler's property for sale and assigned the company to bankruptcy, according to the court decisions. Litigation ensued and after a trial, a judge awarded $250,000 in punitive damages to the Alfanos for "compensation for the fraud perpetrated on them" by Pier- santi. The judge determined Pier- santi had fabricated a fraudulent shareholders' agreement, improp- erly assigned the company into ARTIFICIAL INTELLIGENCE Broader discussion required on standards P7 FOCUS ON Cannabis Law P8 PM #40762529 $5.00 • Vol. 29, No. 2 January 15, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M BILINGUAL JUDGES Government should boost French services P5 See Lawyer, page 4 A Law Society of Ontario tribunal has found a real estate lawyer committed professional misconduct after he misappropriated funds from a paving company. See Misappropriated, page 4 Ruling alleged to threaten solicitor-client privilege Master bars lawyer from case involving his own firm Samuel Kazen says a recent Ontario Superior Court decision could set a troubling precedent if not overturned on appeal. Photo: Robin Kuniski Follow Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit THE LATEST NEWS THE BEST COMMENTARY DELIVERED WEEKLY FOR READING ON ANY DEVICE Untitled-2 1 2018-01-09 2:54 PM Fresh Canadian legal news and analysis available on any device. Get More Online ntitled-4 1 2018-01-09 3:15 PM

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