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Duties of opposing counsel appealed

|Written By Patricia Chisholm

A recent decision from the Ontario Superior Court dealing with the duties that opposing counsel owe to one another is likely to be watched closely as it heads through the appeal process. The September ruling by Master Sandra G. Birnbaum resulted in an order for the removal of two highly respected law firms as solicitors of record in a civil case involving damages for sexual assaults that took place in the mid-1980s.

In rendering her decision in K.L.S. v. Delzotto, Birnbaum concluded that a clerical mistake that resulted in the plaintiff's counsel viewing defence documents in error, fatally compromised the relationship between the defendant and the plaintiff's lawyers.

She rejected the argument that the plaintiff would be highly prejudiced if his counsel, unnamed senior litigators at Goodman and Carr LLP and Lerners LLP with special expertise in historical sexual assault, were removed from the case. She also noted: "All senior counsels in this action are sophisticated litigators, experienced with high-profile cases. Even in a case with parties as antagonistic as these, counsel must co-operate with each other in many ways to bring an action to a successful conclusion. The behaviour of plaintiff's counsel has been of such a nature as to create a serious trust issue among counsel — a breach so serious as to prejudice all parties in this action. The integrity of an action is compromised when counsel no longer trust each other."

The circumstances that led to the mistake were unusual but not outside the realm of possibility in almost any law firm. Due to the appointment of the plaintiff's senior counsel to a government commission and then the maternity leave of another lawyer, three different lawyers from two firms were involved with the plaintiff's case at the time the mistake was made.

A question arose over access to defence documents. The defendant had been convicted of sexual assault of KLS. Crown briefs had been prepared on two occasions, 1990 and 2002. There were also medical records.

Counsel at McCarthy Tétrault LLP, which represents the defendant, claimed privilege for the medical records, reiterated the defendant's position that questions asked about the 2002 Crown brief were not relevant, and stated that the defendant did not have access to the 1990 Crown brief. Plaintiff's counsel brought a motion, with notice to the attorney general and the police, for a decision on which documents had to be disclosed. Since the 2002 decision in D.P. v. Wagg, a Crown brief cannot be disclosed without the consent of the attorney general, or a court order with notice to the AG.

About a week before the motion was to be heard last March, a law clerk at the office of the defendant's criminal lawyer called a junior counsel at Lerners (the plaintiff's counsel) inviting her to their offices to examine the defendant's file. Junior counsel returned the call, identified herself and went to the criminal defence counsel's office two days before the motion was to be heard and examined the file.

The law clerk subsequently swore an affidavit stating that she had a letter in hand from Lerners' counsel and that she mistakenly called that number instead of McCarthys.

The master reviewed a series of subsequent e-mails between the junior and senior counsel for the plaintiff. At one point, the senior counsel raises the possibility that a mistake has been made.

Birnbaum ruled that, from the point the junior counsel reviewed the defendant's file, she should have been aware that a mistake had been made. "From that point on, the intentional behaviour of all of the plaintiff's counsel was inappropriate," she says.

Gavin MacKenzie, who acted for Lerners on the motion, is a bencher of the Law Society of Upper Canada and an expert on professional ethics. He noted that while the situation in this case was unusual, the inadvertent disclosure of documents over which privilege is claimed is not. In the future, he added, the problem is likely to arise more often because of advances in technology. The issue, in fact, is scheduled to be heard by the Supreme Court of Canada in December.

He said his client's position was that it was not obvious that a mistake had been made. He noted that Lerners had been seeking production of material in the possession of the defendant's criminal counsel. "The call [from the law clerk] did not come out of the blue."  

Upon seeing the size of the file, junior counsel also asked the clerk if she was sure that privileged documents had been removed. After checking, the clerk removed something from the file and then instructed the junior counsel to go ahead.

The decision is being appealed on the ground that Birnbaum erred in law by making a ruling removing Lerners and Goodman and Carr without first determining whether the defendants were under an obligation to produce the documents in question.

Harold Niman, who acted for the parents of the defendant, said that the case is simply another in a long line that deal with the responsibility of lawyers to each other when an error has been made, said Niman.

He also referred to Birnbaum's comment about the need for trust between opposing counsel. 

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