If lawyers who work in association with each other “hold themselves out as law firms,” they’re subject to the same stringent conflict and confidentiality protocols expected of law firms, a Superior Court judge has found.
In a ruling this month, Justice David Stinson set aside a 2013 master’s decision that rejected a presumption that lawyers who work in association with each other are sharing confidential client information.
In an employment law case, Jajj v. 100337 Canada, the defendants sought to remove lawyer Kenneth Alexander of the Davenport Law Group as the plaintiff’s counsel due to conflict of interest concerns. The defendants had previously consulted with a lawyer who works in association with Alexander. The defendants argued for a presumption that the lawyer, Kevin Fox, had shared information with Alexander.
“In my view, where lawyers who practise ‘in association’ nevertheless hold themselves out to the public and to their clients as a law firm, they should be treated as such and be held to the same conflict requirements and professional obligations as a law firm,” wrote Stinson.
The lawyers used the same telephone and fax numbers, company letterhead, and e-mail domain, all of which gives outsiders the impression that the Davenport Law Group is a law firm, the judge found.
“Nowhere on their letterhead or on Mr. Fox’s business card is there any indication that DLG is not a law firm name under which various lawyers practise as partners,” he wrote in Jajj.
When Master Benjamin Glustein found the two lawyers hadn’t discussed the case in his decision on the matter last year, he simply took Fox’ word for it, according to Stinson. The judge added Fox’ evidence didn’t provide “insight” into the workings of the office space he shares with Alexander and how the lawyers prevent inadvertent communication of client files.
“In the present case, the respondents’ evidence that there is no cause for concern is, in essence, based on the assurance of Mr. Fox that there is no conflict, and that he can be trusted to respect Rule 2.03(1),” wrote Stinson.
“Despite having held himself out (as has Mr. Alexander) as a member of DLG, he now assures the court (after the fact) that he will not share any confidences with Mr. Alexander. For clients such as the defendant, having entrusted its confidences to another lawyer at DLG, that is cold comfort.”
Lawyer Ben Hanuka, who had said Glustein’s ruling “sets a dangerous precedent” at the time of the original finding, says the judge got it right in the June 5 decision.
“Modern versions of law firms, as important as they are, should not take priority over the protection of the public,” he says.
In this particular case, Stinson was right to find nothing indicates to the public or clients that the Davenport Law Group isn’t a law firm, says Hanuka, noting lawyers should be careful about how they portray themselves.
“It’s not enough to say, ‘We’re not a firm,’” he adds.
But Alexander tells Law Times the move to remove him was simply a question of “tactical advantage.” He says he’s representing the same client in a separate action against the same defendants and notes that in that case, the defendants haven’t attempted to remove him.
Stinson failed to identity exactly what confidences he and Fox could have shared, he says, noting the theoretical basis for the decision to remove him.
As to the Davenport Law Group, “it’s a group of lawyers, it’s called a group,” he says.
“It’s a street address. That’s all it says.”
Although the Davenport Law Group isn’t a law firm, other practices that call themselves law groups are in fact law firms. Frank Addario of the Addario Law Group says his practice is “a strict firm.”
It’s important that lawyers working in association erect “substantial barriers” to confidentiality breaches and have evidence to back up their assertions, says Addario. “It seems fair that people should take up the opportunity to create the evidentiary basis for establishing that they’re not as things appear,” he says. “If it looks on the appearance of it that there’s a single shared network of lawyers but the reality is different, it’s not that difficult to put that in front of the courts.”
To Stinson, although it’s “desirable” to allow lawyers to be mobile and work in association, putting up the appearance of a law firm could be a tactic used by sole practitioners to attract clients.
“Indeed, in the absence of any public disclaimer, the logical inference is that one of the reasons [the lawyers at DLG] choose to represent themselves in such a fashion, utilizing a common firm name, is to create the impression for clients and others that outsiders are somehow dealing with a group of lawyers, and not merely with a sole practitioner, or at the very least a lawyer who has resources available beyond those which might be available to a lawyer who practises alone,” he wrote. Stinson also suggested lawyers who work in association should put in place the same conflict search system as law firms and implement measures to ensure confidentiality.
But according to Alexander, that proposition is “dangerous” as lawyers who work in association would have to reveal their clients to each other in order to perform a conflict search. Law firms doing conflict searches don’t have to worry about that issue as all clients are theirs, he says.
Still, the Davenport Law Group will make it “a little bit more explicit” that it’s not a law firm, says Alexander. “We could maybe say association on [our letterhead] but . . . at the end of the day, most of these things are tactical,” he says.
For more, see "Lawyers in association should note new ruling" and "Lawyers in association get confidentiality reprieve."