When you try to take out the other team’s player, don’t be surprised when you get a penalty
Sports should be played fairly and in the spirit of the game. It is unsportsmanlike to take out another player with a beanball, a cross-check, or a bumper to the back wheel. Yet in sports, where winning is everything, players resort to dirty tactics all the time to knock another player out of the game to gain an edge.
If there is an incentive to eliminate a skilled member of the other team in the contrived world of sports, it is not hard to imagine that there is an incentive to do the same in the justice system, where the consequences of winning or losing are real and tangible. All that differs are the tactics.
In litigation, a party may move to disqualify their opponent’s lawyer – their star player – on the basis of a conflict of interest. Lawyers’ duties of loyalty and confidentiality to their clients are some of the highest principles upheld by the law, and the courts have not hesitated to remove a lawyer from a case where the lawyer was betraying a duty to one client by unfairly representing another.
However, like boxing referees watching for blows below the belt, the courts have been keen to look out for parties who abuse the conflict of interest rules to knock out the other side’s lawyer to gain an undeserved tactical advantage. These concerns have been voiced by the Supreme Court of Canada in Canadian National Railway Co. v. McKercher LLP, R. v. Neil, and Strother v. 3464920 Canada Inc., just to name a few.
Conflicts of interest are common in estate litigation. They often arise in will challenges where a lawyer drafted the deceased’s will and then represents the executor in the administration of the estate. The conflict crystallizes when the validity of the will is challenged and the lawyer becomes a witness, which also causes the interests of the deceased client and the living executor to diverge.
Will challenges are the typical, but not the only, scenario. In the July 2015 Ontario Superior Court of Justice case of Tierney (Estate) v Brown, the court removed the executor’s lawyer even though the validity of the will was not contested. This case was an application by the executors to pass their accounts. The executors’ lawyer had previously acted in several different capacities: giving advice to the deceased’s attorney for property, representing the attorney in the sale of the deceased’s land during his life, representing the executor of the deceased’s wife’s estate, and possibly advising the deceased about his will (but not drafting it).
The beneficiaries complained that the lawyer’s involvement in the executor/attorney’s transactions made him a key witness. The executors, hoping to keep their knowledgeable and experienced lawyer, argued that it was premature to remove him and said that the issue should be deferred until after their examinations, presumably because they might be able to give enough evidence themselves to make it unnecessary to examine their lawyer.
The court found that the lawyer’s role had evolved into a conflict of interest because of his various and extensive roles. In the context of a hotly contested passing of accounts application, this conflict justified removing the lawyer.
In the end, the executors lost their star player. The court was not concerned that the motion to remove him was abusive. Compare this to the 2014 case of Boktor v. Reddy, where the court found that a motion to disqualify the lawyer was a “strategic ploy, designed to delay the proceeding” and ordered the moving party to pay costs of $50,000 on a substantial indemnity basis.
In most sports, the distinction between a fair play and a dirty one is in the eye of the referee. Both teams need to consider what is fair, what is legal – and what they can get away with. Parties in estate litigation need to be equally mindful when it comes to trying to remove the other party’s lawyer.
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Written by: WEL Partners
Posted on: July 30, 2015
Categories: Commentary
Sports should be played fairly and in the spirit of the game. It is unsportsmanlike to take out another player with a beanball, a cross-check, or a bumper to the back wheel. Yet in sports, where winning is everything, players resort to dirty tactics all the time to knock another player out of the game to gain an edge.
If there is an incentive to eliminate a skilled member of the other team in the contrived world of sports, it is not hard to imagine that there is an incentive to do the same in the justice system, where the consequences of winning or losing are real and tangible. All that differs are the tactics.
In litigation, a party may move to disqualify their opponent’s lawyer – their star player – on the basis of a conflict of interest. Lawyers’ duties of loyalty and confidentiality to their clients are some of the highest principles upheld by the law, and the courts have not hesitated to remove a lawyer from a case where the lawyer was betraying a duty to one client by unfairly representing another.
However, like boxing referees watching for blows below the belt, the courts have been keen to look out for parties who abuse the conflict of interest rules to knock out the other side’s lawyer to gain an undeserved tactical advantage. These concerns have been voiced by the Supreme Court of Canada in Canadian National Railway Co. v. McKercher LLP, R. v. Neil, and Strother v. 3464920 Canada Inc., just to name a few.
Conflicts of interest are common in estate litigation. They often arise in will challenges where a lawyer drafted the deceased’s will and then represents the executor in the administration of the estate. The conflict crystallizes when the validity of the will is challenged and the lawyer becomes a witness, which also causes the interests of the deceased client and the living executor to diverge.
Will challenges are the typical, but not the only, scenario. In the July 2015 Ontario Superior Court of Justice case of Tierney (Estate) v Brown, the court removed the executor’s lawyer even though the validity of the will was not contested. This case was an application by the executors to pass their accounts. The executors’ lawyer had previously acted in several different capacities: giving advice to the deceased’s attorney for property, representing the attorney in the sale of the deceased’s land during his life, representing the executor of the deceased’s wife’s estate, and possibly advising the deceased about his will (but not drafting it).
The beneficiaries complained that the lawyer’s involvement in the executor/attorney’s transactions made him a key witness. The executors, hoping to keep their knowledgeable and experienced lawyer, argued that it was premature to remove him and said that the issue should be deferred until after their examinations, presumably because they might be able to give enough evidence themselves to make it unnecessary to examine their lawyer.
The court found that the lawyer’s role had evolved into a conflict of interest because of his various and extensive roles. In the context of a hotly contested passing of accounts application, this conflict justified removing the lawyer.
In the end, the executors lost their star player. The court was not concerned that the motion to remove him was abusive. Compare this to the 2014 case of Boktor v. Reddy, where the court found that a motion to disqualify the lawyer was a “strategic ploy, designed to delay the proceeding” and ordered the moving party to pay costs of $50,000 on a substantial indemnity basis.
In most sports, the distinction between a fair play and a dirty one is in the eye of the referee. Both teams need to consider what is fair, what is legal – and what they can get away with. Parties in estate litigation need to be equally mindful when it comes to trying to remove the other party’s lawyer.
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