The Ontario Superior Court has ruled lawyers consulted by their colleagues and who don’t receive confidential information in the course of the consultation may give general advice without fear that they won’t be able to act in the proceedings giving rise to the request for assistance.
Indeed, many lawyers have found themselves in the same situation facing Milton Davis of Toronto’s Davis Moldaver LLP when the veteran counsel took a call from lawyer Gregory Govedaris.
Govedaris called with general questions about mortgage foreclosure proceedings that involved one of his clients. He didn’t identify the clients or other litigants in the action.
Davis answered the question, unaware that the opposing parties in the action included two companies, Great Lakes Cooper and 3072453 Nova Scotia Co., whose principals he had had a solicitor-client relationship with for some 20 years.
Three months later, the companies retained Davis to represent them in the action against Govedaris’ clients. Gary Caplan of Toronto’s McCague Borlack LLP, acting for Govedaris and his clients, moved to prevent Davis from continuing as counsel.
“This was a case in which Milton Davis let his guard down, thinking it was the right thing to do to help a colleague in the profession,” says Tom Curry of Toronto’s Lenczner Slaght Royce Smith Griffin LLP. Curry represented Davis and his clients on the disqualification motion.
Justice David Price of the Ontario Superior Court of Justice framed the issue as follows: “This motion calls for a determination as to whether a lawyer, by providing legal information that benefits another lawyer’s client in litigation, is
thereby precluded from representing opposing parties in the litigation.”
Govedaris maintained he discussed litigation strategy with Davis, whereas Davis’ position was that he responded to the questions only with general information about civil procedure in mortgage actions.
Price ruled no solicitor-client relationship arose between Govedaris’ clients and Davis because Govedaris didn’t disclose confidential information to him. Govedaris also hadn’t established that he had identified the litigants in his conversation with Davis.
“Mr. Davis asserts that if Mr. Govedaris had mentioned Mr. Davis’ client of 20 years during the discussion, he would have ended the discussion,” wrote Price.
“I accept his evidence in this regard.”
There was also no evidence Govedaris had sought “legal advice” from Davis, as that expression applies in the context of the law of privileged communications, or that Davis owed Govedaris’ client a duty of care.
“While a client’s relationship with a senior lawyer who provides information to the client’s own lawyer is arguably more proximate than the client’s relationship with an opposing lawyer who provides such information, I find that neither type of consultation, by its nature, gives rise to a duty of care,” wrote Price.
“It is the client’s own lawyer who owed the duty to his client, plain and simple. It is that lawyer who must weigh what he is told by another lawyer, whether it be an opposing lawyer or a senior member of the bar whom he consults.”
As Price saw it, a finding that a lawyer consulted by another counsel and who provides general assistance without receiving confidential information can’t then represent any party with an adverse interest to the client in question would have an “unwarranted” and “chilling” effect.
In addition, there was no duty on Davis to embark on a conflicts check before giving his advice, the judge found.
“The myriad of places, times, and circumstances in which such requests [for advice] are made, including taxi cabs, restaurants, and parking lots, makes it impossible, in many cases, for the recipient of the request to run a conflicts check before responding,” wrote Price.
The upshot, Price concluded, was that the consultation didn’t disqualify Davis from representing Great Lakes Cooper and 3072453 Nova Scotia.
“A lawyer who receives a request for legal information from a more junior or less experienced colleague is entitled to assume, unless alerted either explicitly by the lawyer calling, or implicitly, by the confidential nature of the information imparted, that the consultation will not give rise to a conflict of interest or impose liability on the recipient of the request,” wrote Price.
“To hold otherwise would have the effect of discouraging a sharing of general information that is beneficial to both the profession and the public.”
Gavin MacKenzie of Davis LLP’s Toronto office, an expert on professional responsibility and ethics, agrees with both the reasoning and the result in the case.
“They strike me as very sensible,” he says. “In fact, I am surprised that the motion was brought on these facts.”
The opposite result, says MacKenzie, would have deprived litigants of their counsel of choice and discouraged senior and specialized practitioners from providing advice to junior colleagues and general practitioners.
“That would hardly be in the public interest,” he says.
Still, MacKenzie suggests lawyers approached in these circumstances insist their colleague discloses no confidential information.