Leach v. Leach, 2016 ONSC 6140 is an extraordinarily unusual family law decision because it features husband moving to remove wife’s lawyer as counsel of record.
Wife had been represented by Ms. Anderson for some five years. The case is notionally about spousal support: husband’s income fluctuated as a result of employment changes and spousal support had to be sorted out. I say “notionally” because the case boiled over when wife shifted from being a part time employee to full time employee at her lawyer’s firm. Husband took great exception to wife’s employment and demanded Ms. Anderson recuse herself on account of conflict of interest. Ms. Anderson refused and husband brought a motion.
Counsel for both husband and wife obviously retained outside counsel to prepare and argue the motion. The material was voluminous at eight affidavits, three continuing record volumes, and four facta. The motion was adjourned a number of times and, when it occurred, took a full day. One can only imagine how much the motion cost all told; likely well north of $15,000.00.
Perhaps not surprisingly, there are no analogous cases. The Court therefore outlined the general principles dealing with removal of counsel:
- It is an objective rather than subjective standard; the actual perceptions of the litigant are irrelevant. The question is whether a reasonably informed member of the public would perceive there to be a conflict of interest or ethical breach arising if the lawyer continued acting for a client who is also an employee.
- Courts exercise great restraint in interfering in a litigant’s counsel choice and will interfere only in the clearest of cases.
- The Court must be guided by the following policy considerations:
- The necessity of maintaining the high standards of the legal profession and integrity of the justice system; and
- Courts must ensure that a litigant is not deprived of their choice in lawyer without good cause.
Applying these principles, the Court distinguished the employer-employee relationship from circumstances where the solicitor-client relationship is intimate or familial. Those cases clearly give rise to a conflict of interest in which counsel loses objectivity. The employer-employee relationship does not necessarily and husband failed to establish otherwise here.
What is most spectacular about Leach is not the reasoning. It is the simple fact that the case was ever litigated in the first place. Ms. Anderson understandably dug her heels in at the accusation of a conflict. In fairness to husband, however, Ms. Anderson’s retainer certainly is of some concern. It is a bizarre relationship and there is no shortage of family lawyers in Ontario.
Leach exposes a very expensive and dangerous truth about family law: clients, and indeed lawyers, get entrenched in positions and cannot advocate either effectively or as effectively as possible in the circumstances. How the two lawyers in this case are supposed to work together now in any constructive manner is beyond me. It seems reasonably likely that every issue, no matter how minor, will be litigated from this point forward unless and until one or the other counsel changes. It is reasonable to suppose that the parties might be best served at this point by both retaining new counsel.
Overall, a very unusual case.
Jeffrey L. Hartman