The Problem of Conflicting Out as a Tactic of Abuse

In the movie Marriage Story, Nicole (Scarlett Johansson) and Charlie (Adam Driver) are divorcing. They have a young child, and the main issue is the child’s parenting arrangements. In the movie, Charlie is the more reluctant spouse, and he has finally booked a consultation with a lawyer. When he arrives at the law firm, he is told by the receptionist that the lawyer he was there to meet cannot see him because Nicole already did. The lawyer has been conflicted out. It turns out that Nicole has met with several lawyers, at her sister’s insistence, before finally retaining the lawyer portrayed by Laura Dern. In the movie, this seems innocent enough. It appears she met with these lawyers because she was trying to find the perfect lawyer for her, and she wanted to please her sister by following through on her recommendations. In a big city like Los Angeles, it also does not seem problematic because, as Charlie discovers, there are a lot of lawyers that Nicole had not met with.

But conflicting out can also be something that a spouse will do in order to ensure that the best lawyers are not available to represent their former partner, or to ensure that their former partner has no legal representation at all. Recent research conducted by Rise Women’s Legal Centre, “Why Can’t Everyone Just Get Along?”, found that many survivors of abuse cite conflicting out as a “common tactic” (pg. 33). The abuser will “preclude women’s access to experienced and knowledgeable counsel” (pg. 33). A similar study by West Coast LEAF in 2014, “Putting Justice Back on the Map”, found the same pattern. Both studies found that the problem is especially common in small communities (LEAF at pgs. 24-26; Rise at pg. 33). In small communities it is easier for an abusive spouse to meet with all the local law firms to conflict them all out, leaving the survivor with no legal representation. In the context of intimate partner violence (“IPV”), this tactic works to rob the survivor of their choice of counsel, and it allows the abuser to exercise control over the survivor. It shows the survivor that the abuser is omni-present, able to control and prevent an attempt to seek assistance to leave the relationship. In a rural community it may be nearly impossible for the survivor to travel to retain counsel elsewhere, particularly if the survivor has no access to funds of their own, no time off, or no childcare.

To be sure, conflicting out can also be a problem for families living in populous urban areas, especially high-net worth families. In complex financial disputes, there are typically a limited number of lawyers with the necessary skill and expertise. Again, it would not be an onerous effort for the more powerful spouse to meet with all the lawyers/firms who would be likely candidates for their spouse’s representation. Indeed, one troubling article in Forbes aimed at providing women with information about the “full range of tactics some husbands use” cites conflicting out as one of the primary tactics. The author also claims, “celebrities frequently use this strategy”, which in a celebrity culture seems to justify the conduct. That said, I suspect the message is accurate – conflicting out can be an issue everywhere.

The Problem is that Disqualification Makes Sense

The same lawyer cannot represent both spouses in a family law matter. The parties are directly adverse in interests. The law governing lawyers and the Federation of Law Societies of Canada Model Code of Professional Conduct prohibits lawyers “from representing one client whose legal interests are directly adverse to the immediate legal interests of another client” (R 3.4-1[1]). This is what’s known as the “bright line rule” (Canadian National Railway Co. v McKercher LLP, 2013 SCC 39 at para 8). This may result in the whole law firm being disqualified, especially in family law where lawyers typically practice in small firms.

Conflicting out occurs when a lawyer meets a potential new client for a consultation – Spouse A. During that conversation, Spouse A will tell the lawyer information about their case, enough confidential information for the lawyer to be able to provide legal advice. Even if Spouse A does not retain the lawyer, those communications are protected by solicitor-client privilege and the duty of confidentiality. As a result, the lawyer is in a conflict of interest if they were to represent Spouse B. When Spouse B attempts to retain the lawyer, the lawyer completes a conflict check and sees that they already met with Spouse A so they cannot meet with Spouse B. If the lawyer were to represent Spouse B, the lawyer would be at risk of relying on confidential information to the detriment of Spouse A for the benefit of Spouse B. Hence, the Model Code provides that “a lawyer must not act against a former client in the same matter” (R 3.4-10(a)). The lawyer must protect the former client’s confidential information.

This all makes perfect sense when the goal is protecting client confidentiality and avoiding the possibility that the lawyer’s representation will be “materially and adversely affected by the lawyer’s” duties to a “current client” or a “former client” (McKercher at para 8). But one of the objectives of the law and rules governing conflicts of interest is the protection of the lawyer’s obligations to the legal process and the administration of justice (McKercher at para 16). The point is to reduce the risk of ineffective representation by the lawyer, to support the lawyer’s duty of loyalty to their client (R 3.4-1[5-6]). The goal is to ensure the integrity of the justice system.

However, when conflicting out is done for a nefarious purpose, the client is effectively using their would-be lawyer as a tool of abuse. A lawyer’s role is to provide access to the law so their client may access their legal entitlements. The law does not provide a right to use the law to prevent someone else from accessing it. If that is the outcome it is beyond the lawyer’s role and not something the law provided. Instead of protecting the administration of justice, the same rule is being used distortedly. The lawyer has been used to undermine the integrity of the justice system.

What tends to get the profession’s attention are applications to disqualify counsel in the context of corporate commercial or intellectual property litigation – institutional clients. These are instances where a powerful party has brought a disqualification motion strategically in order to “delay the proceedings”, as an “offensive” litigation tactic, to “dissuade” the opposing party from “continuing” with the litigation, or to exploit the lack of resources available to the other party.[1] In such a case the party has brought an application to the court seeking to disqualify the opposing party’s counsel based on a perceived conflict of interest. In McKercher, the Supreme Court of Canada held that the “bright line rule” does “not apply to condone tactical abuses” (para 32). The rule “cannot be successfully raised by a party who seeks to abuse it … they forfeit the benefit of the rule” (para 36). Chief Justice McLachlin (as she was then), warned that “institutional clients should not spread their retainers among scores of leading law firms in a purposeful attempt to create potential conflicts” (para 36). The Model Code mirrors McKercher (R 3.4-1[1]).

Conflicting out was an issue in the family law context recently when a spouse sought to disqualify her former husband’s lawyer. In Nguyen v Neuls, 2021 SKQB 202, Ms. Nguyen had sought legal advice from a lawyer, and in doing so had described her husband, Mr. Neuls, as violent (paras 1-3). Three years later when the couple separated, Mr. Neuls retained that same lawyer and Ms. Nguyen wanted him disqualified. Justice Brown held that Ms. Nguyen had not sought to use the conflict rules tactically, she had not been trying to “prevent Mr. Neuls from retaining legal counsel who might provide him an advantage” (para 30). Justice Brown also observed that family law proceedings are “often emotionally charged and involve parties who are particularly vulnerable” (para 22). If Mr. Neuls were permitted to retain the lawyer of his choice it meant the lawyer would be cross-examining Ms. Nguyen, presumably causing her apprehension given what she had told him about Mr. Neuls’ violent conduct (paras 27-28). Moreover, the parties were in Regina, Saskatchewan, and there was “only one other lawyer” who was conflicted out, so Mr. Neuls’s options were “still quite open” (para 32). The lawyer was disqualified from representing Mr. Neuls.

But concerns about tactical disqualification motions are less helpful when the survivor wants to retain a lawyer who believes they are conflicted out because they already have a solicitor-client relationship with the other party. There is no opposite to a disqualification motion – no qualification motion that can be brought. The abuser is not going to consent, so the survivor has no remedy to cure such a conflict if the lawyer believes they cannot act. Moreover, even if the lawyer thought they did not have enough confidential information to trigger their professional and legal obligations, or if they believed the firm could build a successful confidentiality screen so another lawyer at the firm could act, it is absurd for a disadvantaged party to incur costs to ask the court if they can retain their choice of counsel. It is also not cost-effective for a survivor to retain the lawyer and wait to see if their spouse will bring a disqualification motion.

How Can We Make the Law More Accessible?

The question is: how to prevent conflicting out for abusive purposes?

The Model Code could include commentary warning lawyers to be alive to the possibility of being used as a tool of abuse. I am always in favour of using the Model Code to educate lawyers about family violence. However, presumably, by the time the lawyer understood what was happening they would have already met with the client and learned confidential information – conflicting them out anyway.

We cannot ask lawyers to limit the information they learn in the first consultation in order to prevent enough confidential information from flowing – that would render the lawyer unable to provide competent legal advice. West Coast LEAF proposed the idea of introducing an “intake worker who is not a lawyer” to “triage” new clients, point them towards necessary resources, and facilitate a meeting with a lawyer, if necessary (pgs. 29-30). Presumably such a system would reduce the likelihood of an abusive spouse getting past the intake worker for the purpose of conflicting out. However, such a configuration could only be employed in organizations with the resources and is presumably unlikely for sole practitioners and small firms. Moreover, such an arrangement would have to be structured in a way that did not deem information confidential to the lawyers/firm.

There could be a professional and legal rule that if a party can show that all the lawyers in their immediate geographical region (whatever that might mean) are conflicted out, then they’re permitted to retain counsel further away and access all the necessary steps of litigation remotely. This would not necessarily reveal confidential information related to the spouse who conflicted the lawyer out because there could be another reason for the conflict. Such an exception might work for some people; but not parties who do not have access to a computer, reliable internet, and a private place to use them.

West Coast LEAF’s research considered whether lawyers could be paired with “women-serving organizations”, but such a remedy does not assist same-sex couples. They also found that in small communities this arrangement would likely be unhelpful because the lawyer may have represented the spouse (or a family member in the same tight knit community) at some point (pgs. 29-30).

Finally, it cannot be assumed that conflicting out is always done by the more powerful spouse. Conflicting out may also be employed by a vulnerable spouse who wants to ensure their partner does not retain an aggressive lawyer. This too is beyond the lawyer’s role (not a legal entitlement the law provides), but the dynamic does serve to remind that efforts to prevent conduct for the benefit of some may be disadvantageous to others.

The problem of conflicting out seems to be another consequence of a patriarchal justice system. The rules we have make sense when it is assumed that all parties are equally advantaged; however, in family law there are almost always power imbalances and disadvantages. An abusive spouse’s ability to conflict out the survivor’s choice of lawyer (or ability to retain a lawyer at all) is another way that a survivor of IPV is disadvantaged by the justice system. I am left wondering what the law and rules governing lawyers would look like if we rebalanced the scales to acknowledge that not all parties fit into the neutral, autonomous, self-sufficient conception of a client that informs the law? What if we meaningfully acknowledged that not fitting into this caricature does not make anyone less deserving of the protections that are meant to be available to everyone? What might the law and rules governing lawyers look like then?

*Thank you to Malcolm Mercer and Amy Salyzyn for their thoughtful feedback on an earlier draft of this post.

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[1] Brooke MacKenzie, “Explaining Disqualification: An Empirical Review of motions for the Removal of Counsel” (2020) 45:2 Queen’s LJ 199 at 238-239.