My partner and I were in a crash at the same time, does it make sense for us to hire the same lawyer? What happens if I have to sue my partner, who gets to use the lawyer? What if I agree that my partner can continue to use the lawyer? Shouldn’t I get to choose whoever I want to represent me?
The plaintiff in Hanlan v. Wilson, 2016 BCSC 372 (http://www.courts.gov.bc.ca/jdb-txt/sc/16/03/2016BCSC0372.htm) was involved in a motor vehicle accident when the van in which he was riding as a passenger was struck by an unidentified driver. The plaintiff later met with his lawyer, Mr. Legh, and his common law partner, Ms. Wilson, who was the operator of the van he was riding in at the time of the crash. The plaintiff was advised by Mr. Legh that he should name Ms. Wilson as defendant in the action seeing as she was the driver of the van and they would be unable to find the unidentified driver. Mr. Legh then filed a Notice of Civil Claim on behalf of the plaintiff naming Ms. Wilson, John Doe and ICBC as the defendants.
At discovery, counsel retained by ICBC to defend the claim learned that the plaintiff’s lawyer had met with the plaintiff and the defendant at the same time, on four separate occasions, and attended the scene of the accident with them both. As a result of this information, defence counsel refused to allow Mr. Legh to conduct the discovery of the defendant, Ms. Wilson and made an application for an order to enjoin Mr. Legh from continuing to act for the plaintiff on the grounds that he was in a conflict of interest.
The court discussed two competing interests at stake, the confidence of the public in the integrity of the legal profession and the administration of justice with regard to confidentiality between solicitor and client and the ability of a litigant to retain counsel of his own choosing. Mr. Justice Mackenzie found that Mr. Legh, the plaintiff’s lawyer, had not discharged the burden of proof that relevant confidential information was not imported during his meetings with the defendant. The order was granted and Mr. Legh was removed as the counsel of record for the plaintiff:
[30] I also agree with the applicant that Ms. Wilson’s alleged consent must give way to the public interest in the administration of justice, as there is no doubt that here there is a legitimate concern about the appearance of impropriety arising from a conflict where counsel was once acting for a client but is now pursuing a claim against her arising out of the same incident.
[31] I am of the view that is especially significant where, as here, as I have mentioned, Mr. Legh has filed a claim alleging Ms. Wilson contributed or caused the accident. This clearly raises the distinct possibility that Mr. Legh will be placed in the position of having to cross-examine his former client on the same matter in which he once represented her.
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[35] In my view, a reasonably informed member of the public, aware of all the circumstances in this case, would not be satisfied that no confidential information was imparted which could be relevant.
[36] As a result, I am unable to conclude Mr. Legh has discharged that heavy burden placed upon him pursuant to the principles outlined in MacDonald Estate.
[37] Finally, I turn to the issue of counsel of choice and the desirability for litigants to be able to retain counsel of their choice, as long as counsel is in a position to act professionally and in the absence of any conflict of interest.
[38] On this point Mr. Hanlan, the plaintiff, deposes that if Mr. Legh were unable to act for him, this would cause Mr. Hanlan a great deal of hardship, and that it “will be very difficult, if not impossible, to find a new lawyer due to the complexity of the case.”
[39] While I am confident that since December 2012 Mr. Legh and Mr. Hanlan have established a rapport, and that Mr. Legh is well versed in the circumstances of the case, and even though the question of pre-existing injuries does complicate any personal injury action somewhat, I am unable to agree it will be unduly difficult for Mr. Hanlan to obtain new counsel, given the trial date is approximately 11 months away.
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[41] In conclusion, as I have found that Mr. Legh has not discharged the heavy burden of satisfying the court that no relevant confidential information was imported, coupled with the fact that the retainers are clearly sufficiently related to the same subject matter, Mr. Legh is in a conflict of interest that precludes him from acting further for Mr. Hanlan.
[42] In these circumstances, as the court found in MacDonald Estate and our Court of Appeal in Rosin v. McPhail, disqualification is automatic. As a result, the application is allowed and I direct that Mr. Legh, and his firm, be removed as counsel of record for the plaintiff Mr. Hanlan.
[43] As a result of this determination, as discussed at the outset of the application, the application by the plaintiff to examine Ms. Wilson with respect to the issue of the passing of confidential information is academic and, for the record, is dismissed.
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