Column

Personal Conflicts of Interest and the Junior Lawyer

In April, former Alberta Justice Minister Jonathan Denis was found in contempt of court because a letter sent on his behalf threatened to bring an action for defamation against a plaintiff who was in the middle of giving testimony in a civil trial.

The plaintiff, Dr. Sauvageau, was Alberta’s top forensic pathologist from 2011-2014, and was suing the province alleging that she had been forced out of the job because she raised concerns relating to political interference. Mr. Denis was not a defendant in the action, but was the justice minister at the time the allegations pertain to.

As reported by CBC News, the letter stated “We have been closely watching Dr. Sauvageau’s current trial and are aware that … Dr. Sauvageau’s defamation of Mr. Denis has continued unabated…”, and continued to note that Mr. Denis’ law firm was investigating a defamation action against her and planning to order transcripts from the case in which she was testifying.

The day after receiving the letter, Dr. Sauvageau did not return to the witness stand, and stated she was fearful to testify because she couldn’t afford to defend a defamation lawsuit brought by Mr. Denis.

Importantly, witnesses’ statements made in court are privileged; they cannot form the basis of a defamation claim.

The letter and the contempt finding (and the continuing appeal process)[1] were widely reported in the national media.[2] Justice Doreen Sulyma of the Court of Queen’s Bench stated that she had never seen anything like it in her 50-year legal career. Professor Steven Penney of the University of Alberta Faculty of Law commented that he was surprised that a former justice minister would make the sorts of claims contained in the letter, noting, “you cannot be sued on the basis of anything you say under oath in court. There are no exceptions. It’s existed in the law for at least 100 to 150 years. And it’s something that should be known by all lawyers as being a very clear rule.”[3] The focus of media attention tended to be on the letter’s impropriety.

But another aspect of this story was of greater interest to me as an ethics and professional responsibility lawyer: the letter’s author.

The letter was sent on Mr. Denis’ behalf by a first-year lawyer at Guardian Law Group—the firm at which Mr. Denis now practises as a Founding Partner.

This is not the first time I have seen a junior lawyer deputized to act on a senior partner’s personal matter, and I’m sure it won’t be the last.

Sometimes the request is pretty harmless. Early in my career at a large firm I remember seeing a colleague sent to court to defend a partner’s traffic ticket; both the junior lawyer and partner agreed would be a fun, low stakes opportunity for the junior to get some advocacy experience on his feet, which could be hard to come by as a first year on Bay Street.

But senior counsel should not assume that their juniors can act for them for free, as if it is one of the perks of running a law firm. I suggest that Mr. Denis’ case illustrates a key problem with such requests: they might put the junior lawyer in a conflict of interest.

One of a lawyer’s central professional obligations is to avoid acting in a conflict of interest. Most lawyers and law firms are very good at considering the most common categories of conflicts: where acting on a matter would put the lawyer or law firm in conflict with the interests of a current client (which engages the lawyer’s duty of loyalty to their clients) or a former client (i.e. where the lawyer’s duty of confidentiality to their former client would conflict with the lawyer’s duty of candour to the new client). Lawyers and law firms honouring the professional obligations have systems in place to check for such conflicts by searching their files for the names of potential, current, and former clients. These conflicts are not hard to suss out.

But the universe of potential conflicts of interest is bigger than that. The professional conduct rules for lawyers in every common-law jurisdiction in Canada provide that a conflict of interest exists when there is “a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the [1] lawyer’s own interest or the lawyer’s duties to [2] another [current] client, [3] a former client, or [4] a third person.”

Conflict checking systems can only identify current- and former-client conflicts—those that can be identified by searching and matching up client names. Often, it’s incumbent on the lawyer to actually think through their professional obligations, and whether other circumstances—particularly the lawyer’s own interests—could adversely affect the lawyer’s loyalty to or representation of the prospective client.

When I have been retained to assist in responding to a Law Society complaint or investigation or to provide an opinion about a solicitor’s negligence claim, I’ve seen a pattern: allegations against lawyers in these contexts are often premised on a “personal interest” conflict.

The problem in (non-financial) personal interest conflicts is that the lawyer’s personal relationships or circumstances risk undermining their ability to provide independent and objective representation to their client. Lawyers have a duty to be candid with their clients, and to resolutely advocate for their clients’ legal interests. In Ontario, the commentary to the candour rule explains:

The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.

Our courts regularly repeat the adage that counsel must not be a “mere mouthpiece” for their clients—their function is to provide assistance and advice through the exercise of professional judgment, bringing to bear their skill, knowledge, and objectivity.[4]

Put simply: a lawyer should not act on a matter if they can’t tell their client the hard truth—or if they face strong incentives not to.

Returning to Mr. Denis and his first-year lawyer: although I of course do not know what went on in Guardian Law Group as the defamation threat letter was drafted and sent to the testifying plaintiff, it’s hard to believe that the junior lawyer in whose name the threat letter was sent was providing independent and objective representation “based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise”.

Perhaps Mr. Denis was the letter’s ghostwriter, and the junior was serving as a “mere mouthpiece” for the person who signs his paycheques (so to speak) without assessing the situation himself. Perhaps the junior really thought threatening a defamation suit based on in-court testimony was a bad idea, but as a brand-new lawyer was not comfortable telling his boss—the former Minister of Justice—that he shouldn’t do it. Perhaps the junior did start such a conversation, but ultimately deferred to Mr. Denis because of his seniority, rather than exercise independent judgment as the lawyer signing the letter. Or perhaps the junior took it upon himself to make a baseless and improper threat in a misguided effort to zealously advocate for and impress his boss.

Either way, the junior lawyer’s personal interest in keeping and advancing in his employment would have adversely affected his ability to represent Mr. Denis effectively.

The judge made her contempt ruling on the court day after the threat letter was brought to her attention. By then, Mr. Denis was represented by outside counsel. The first-year lawyer nevertheless attended the proceedings and apologized to the judge, noting that the situation had been a “learning experience for [him] as a new lawyer to the bar”.

Let this be a learning experience to all of us, regardless of our year of call.

Senior lawyers: Don’t put your juniors in this situation. Of course they’re adults and they’re smart and they have professional obligations—but they also may have six-figure law school debt that they want to keep their jobs to pay off, and it can be hard to say no to the well-respected partner who just needs a “small favour”. Why not take a broad view of the duty to avoid conflicts of interest, by making sure you’re not creating a potential conflict even as a client?

Besides, you can probably afford to hire a lawyer—and there is much more valuable pro bono work for junior lawyers to do than providing free legal help to senior partners.

________

[1] The matter has not reached a final determination; on 9 May 2022, the Alberta Court of Appeal dismissed Mr. Denis’ motion to stay the contempt finding, but he has filed an appeal on the merits that has yet to be heard as of the time of writing.

[2] This section of this column is premised on the five articles linked, which are from the Toronto Star, Globe & Mail, National Post, and CBC News.

[3] https://www.cbc.ca/news/canada/edmonton/former-chief-medical-examiner-s-wrongful-dismissal-trial-halted-amid-defamation-threat-1.6413800. In the contempt proceedings, counsel for Mr. Denis argued the letter was not about statements in court but rather was cautioning the plaintiff about similar comments she might be making to the media out of court, but this was firmly rejected, including because it referred only to statements made in court; the judge held that the letter “can only be interpreted as a cease and desist letter directed to [the plaintiff’s] privileged testimony”. See: https://www.thestar.com/news/canada/2022/04/13/cp-newsalert-former-alberta-justice-minister-found-in-contempt-of-court.html.

[4] About 30 cases on CanLII make this point in various forms; the term “mere mouthpiece” appears to have been originated by G. Arthur Martin, Q.C., in an address to The Advocates’ Society entitled “The Role and Responsibility of the Defence Advocate”, which is reported at (1970) 12 Crim. L.Q. 376 at p. 382.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)