Date of Release:

June 17, 1992

No: D48296 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) CHRISTINA McGARRELL HUNT ) ) Petitioner) ) and: ) ) DAVID GILMORE HUNT ) ) Respondent) Counsel for the Petitioner: Counsel for the Respondent on the Application, Richards Buell Sutton Place and Date of Hearing:
1992 CanLII 1780 (BC SC)

REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE JO-ANN E. PROWSE

B. Nelson, Q.C.

L. Peters Vancouver, British Columbia June 9, 1992

Mrs. Hunt is applying for an order that the law firm of Richards Buell Sutton be removed as solicitors of record for Dr. Hunt. Millar. The person acting for Dr. Hunt at that firm is Mr. Colin In fact, all of the submissions and the evidence on this

application were directed to the specific question of whether Mr. Millar, in particular, should be entitled to continue to act for Dr. Hunt.

The basis of Mrs. Hunt's application is that Mr. Millar has a conflict of interest in acting for Dr. Hunt, since he was a law partner of Mrs. Hunt's former lawyer, Mr. Lecovin. Mr. Lecovin

2 represented Mrs. Hunt in l982 and l983 with respect to her

matrimonial problems with Dr. Hunt.

During that time a separation

1992 CanLII 1780 (BC SC)

agreement was entered into between the parties which dealt with a number of issues, including spousal maintenance. The issue of

spousal maintenance is currently before the Court by way of an application by Dr. Hunt to rescind maintenance, and an application by Mrs. Hunt to increase maintenance. Those applications are being held in abeyance pending the outcome of this application.

Mrs. Hunt says that it is reasonable to assume that Mr. Millar came into possession of confidential information with respect to her file while he was working with Mr. Lecovin. the Court cannot to Mrs. be satisfied Hunt would that not She submits that information albeit

confidential be

relating

disclosed,

unintentionally, if Mr. Millar continues to act for Dr. Hunt.

In reply to the application, Mr. Millar deposes, in part, as follows:

2. I have known the Respondent, Dr. David Hunt, since the two of us attended law school together. We were students in the same first year class for the academic year l972\73. I was also acquainted with Dr. Hunt during our second year of law school and believe we took a number of classes together. 5. Mr. Lecovin was counsel for Mrs. Hunt while I was associated in the practice of law with him. I, however, had no involvement with the file; save as set out below, I never spoke to Mrs. Hunt nor to the best of my recollection did Mr. Lecovin ever discuss the file with me. At no time did I ever review the contents of the

3 file. I received no confidential information with respect to this matter. I have no knowledge of any of the tactics that may have been discussed between Mrs. Hunt and Mr. Lecovin. I would specifically recall receiving confidential information because of my previous association with Dr. Hunt. 6. On or about February 12, l992, I had a short telephone conversation with Mrs. Hunt. Mrs. Hunt had received the Notice of Intention to Proceed and telephoned me to ask what it meant. I told her that I had instructions to bring an application to vary the amount of maintenance being paid and, as I was not acting for her, it was important for her to obtain separate, independent legal advice. 7. Since receiving the Motion herein, I have attempted to contact Mr. Lecovin to confirm my recollection of my involvement in the case, however, I am advised that he is absent from the country at this time.

The leading case with respect to the circumstances in which the Court will enjoin a lawyer or law firm from acting in a particular case is Martin v. Gray (l990), 77 D.L.R. (4th) 249, a decision of the Supreme Court of Canada. In that case, the Court

referred to the factors which must be considered and balanced on such an application. Sopinka J., speaking for the majority, stated that the three competing values which the Court must consider are: (1) the concern to maintain the high standards of the legal profession and the integrity of our system of justice; (2) the countervailing value that a litigant should not be deprived of his or her choice of of counsel without good cause; and in (3) the

desirability profession.

permitting

reasonable

mobility

the

legal Martin

Both the majority and minority decisions in

1992 CanLII 1780 (BC SC)

4 emphasized the fundamental importance to the solicitor-client

relationship and the public's confidence in the administration of justice of maintaining the confidentiality of information which passes between solicitor and client.
1992 CanLII 1780 (BC SC)

Sopinka J. analyzed the law in Canada and other jurisdictions to determine if the test to be applied in deciding whether a disqualifying conflict of interest exists is the "probability of real mischief test" or the "possibility of real mischief test". He defined "mischief" as the misuse of confidential information by a lawyer against a former client. He concluded that the "probability of real mischief test" was not sufficiently rigorous to satisfy the public requirement that justice must not only be done but must manifestly be seen to be done. He also concluded that the

overriding test to be applied in determining whether there is a disqualifying conflict of interest was whether the public,

represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.

In applying that test, Sopinka stated that two questions must be answered: (1) Did the lawyer receive confidential information

attributable to a solicitor-and-client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? In deciding how to answer these

questions, Sopinka J. made the following comments at pages 268-269 of the Martin decision:

... In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. None the less, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden. The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. ...The answer is less clear with respect to the partners or associates in the firm. Some courts have applied the concept of imputed knowledge. This assumes that the knowledge of one member of the firm is the knowledge of all. If one lawyer cannot act, no member of the firm can act. This is a rule that has been applied by some law firms as their particular brand of ethics. While this is commendable and is to be encouraged, it is, in my opinion, an assumption which is unrealistic in the era of the mega-firm. Furthermore, if the presumption that the knowledge of one is the knowledge of all is to be applied, it must be applied with respect to both the former firm and the firm which the moving lawyer joins. Thus there is a conflict with respect to every matter handled by the old firm that has a substantial relationship with any matter handled by the new firm irrespective of whether the moving lawyer had any involvement with it. This is the "overkill" which has

1992 CanLII 1780 (BC SC)

6 drawn so much criticism in the United States to which I have referred above. Moreover, I am not convinced that a reasonable member of the public would necessarily conclude that confidences are likely to be disclosed in every case despite institutional efforts to prevent it. There is, however, a strong inference that lawyers who work together share confidences. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the "tainted" lawyer to the member or members of the firm who are engaged against the former client. Such reasonable measures would include institutional mechanisms such as Chinese walls and cones of silence.
1992 CanLII 1780 (BC SC)

Mr. Justice Cory, speaking for the minority in Martin and concurring in the result, held that there was an irrefutable presumption that where a lawyer who has had a substantial

involvement with a client joins a firm which acts for an opposite party, the knowledge of such lawyer, including confidential

information disclosed to him or her by the former client, has become the knowledge of the new firm. He concluded that such a

strict test was required to preserve public confidence in the administration of justice.

The circumstances in this case are unlike those in Martin and some of the other cases to which I was referred which dealt with situations in which a lawyer had acted for a client and received confidential information, and had then gone to a new firm which acted for the opposite party. It was in that context that the

question arose as to the potential for abuse of confidential

7 information actually possessed by the lawyer. conflict in this case is more subtle. The potential for Millar did not
1992 CanLII 1780 (BC SC)

Mr.

personally act for Mrs. Hunt, but rather was a partner of the lawyer who did act for her.

Mr. Justice Cory specifically declined to answer the question of whether a lawyer in these circumstances should be irrefutably presumed to have received and imparted confidential information to his new firm. However, I am satisfied that the principles

enunciated in the majority judgment of Mr. Justice Sopinka are relevant to these circumstances, and that the fundamental test to be applied is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur in these circumstances.

I conclude that a reasonably informed member of the public could not be satisfied in these circumstances that no use of confidential information would occur if Mr. Millar continued to act for Dr. Hunt. In coming to this conclusion, I place particular

emphasis on the fact that Mrs. Hunt took her matrimonial problems to a law firm which, during the relevant time, consisted of only two or three lawyers, all of whom were practising matrimonial law. A member of the public could reasonably conclude that two or three lawyers practising matrimonial law together in a small firm be likely to discuss their cases with one another. would

As stated in

Martin, there is a strong inference that lawyers who work together

8 share confidences. Any protestations to the contrary would

reasonably be met with some degree of skepticism.

1992 CanLII 1780 (BC SC)

I appreciate that Mr. Millar has stated that he did not receive confidential information concerning Mrs. Hunt, and that he would remember if he had received such information because of his prior relationship with Dr. Hunt. However, in his Affidavit, Mr. He says that

Millar demonstrates some uncertainty in that regard.

"to the best of my recollection" Mr. Lecovin did not discuss the file with him. He also made an unsuccessful effort to contact Mr.

Lecovin to determine if his recollection was accurate. There is no evidence of whether Mr. Lecovin agrees with Mr. Millar's

recollection concerning this matter, since Mr. Lecovin was not available to respond to Mr. Millar's inquiries.

Given the fact that these matters date back approximately 10 years, it would be surprising if Mr. Millar could specifically recall if he had received any confidential information about a particular file relating to Mr. Lecovin's clients, or what that information was. However, the memory is sometimes triggered in

unexpected ways, and some lawyers have better memories than others.

In this case, I am satisfied that there existed a previous relationship between Mr. Millar and Mrs. Hunt's previous lawyer which is sufficiently related to the matter presently before the Court that the Court is entitled to infer that confidential

9 information was imparted to Mr. Millar. For the reasons I have

given, Mr. Millar has not satisfied the difficult burden upon him to displace that inference. restrain Mr. Millar from In my view, it is not "overkill" to acting for Dr. Hunt in these
1992 CanLII 1780 (BC SC)

circumstances.

Since this application proceeded on the basis of submissions that Mr. Millar, in particular, be precluded from acting for Dr. Hunt, and since all of the evidence was directed to that question, it is not necessary for me to deal with the broader question of whether someone in Richards Buell Sutton other than Mr. Millar is entitled to act for Dr. Hunt. If that becomes an issue, then

counsel can arrange to lead further evidence and make further submissions in that regard.

By way of final comment, I wish to make it clear that in coming to this decision, I do not in any way doubt the integrity of Mr. Millar.

"Jo-Ann Prowse, J." J.E. Prowse, J.

June 17, l992 Vancouver, B.C.