Tactical Disqualification of Counsel and the “Sopranos Rule”

In a recent episode of HBO’s Succession, billionaire daughter Shiv Roy learns that she can’t hire her preferred divorce lawyer because the lawyer is “conflicted out”. Surprised that her husband, Tom Wambsgans, would have chosen the same lawyer she wished to retain, Shiv inquires after a few other top New York divorce lawyers, only to discover they too were conflicted out. Shiv realizes Tom “met with or retained every useable lawyer in New York” to prevent them from representing her against him—a move her shrewd father pulled on her mother many years before. (“I got mommed,” Shiv later tells her siblings.)

Of course, this plotline is a little unrealistic; there are certainly more than a handful of excellent divorce lawyers in New York City, especially with a billionaire’s budget and connections. A slightly more true-to-life version of this scenario played out in a different hit HBO drama about 20 years ago, when a family lawyer told Carmela Soprano that he couldn’t act for her in her divorce because her husband, mob boss Tony Soprano, had consulted with him the previous year. Carmela, a housewife in suburban New Jersey, was surprised to hear this, as another lawyer had told her the same thing—until eventually realizing Tony had met with “seven or eight of the top divorce attorneys in New Jersey” not because he was picky, but as a tactical maneuver to ensure they couldn’t act for her against him. (The conflicted lawyer offered to refer Carmela to a colleague who Tony hadn’t yet “contaminated.”)

We all know television is not always particularly realistic in its portrayal of lawyers and the legal profession. So: does Tony Soprano’s (and Tom Wambsgans’) disqualification maneuver actually work?

Under Canadian rules of professional conduct, it certainly can—but in my view, as a practical matter, it’s not as likely as these TV shows suggest.

Summary of the law on disqualification of counsel

There’s lots to say on the rules and case law relating to lawyer disqualification for conflicts of interest,[1] but for present purposes I can be fairly brief. The Supreme Court of Canada summarized the applicable principle (from the 1990 decision in MacDonald Estate v Martin) in its 2013 decision in CN Railway v McKercher as follows:

A lawyer cannot act in a matter where he may use confidential information obtained from a former or current client to the detriment of that client. A two-part test is applied to determine whether the new matter will place the lawyer in a conflict of interest: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of that client? [para 24; emphasis added]

In considering the first prong of the test, it’s important to note that a signed engagement agreement is not required to establish a solicitor and client relationship; the Model Code of Professional Conduct expressly state that “a lawyer-client relationship may be established without formality”. Rather, the Model Code defines a “client” as a person who:

(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or

(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf.

and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work. [Emphasis added.]

To determine whether the lawyer received confidential information “relevant to the matter at hand” from the former client, courts will consider whether the new matter is “sufficiently related” to the matters on which the lawyer worked for the former client. As Justice Sopinka explained in MacDonald Estate:

…once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. [Emphasis added.]

While this analysis can become somewhat complicated when the allegation is that relevant confidential information was obtained in an earlier, distinct matter, in the above-mentioned examples from Succession and The Sopranos, the analysis is simple: where the lawyers were consulted by the husband about a potential divorce, they could not later act for the wife against the husband in respect of the very same divorce.

The second prong of the test—assessing whether there is a risk that the confidential information will be used to the prejudice of the former client—is fairly straightforward. As explained in MacDonald Estate:

A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail.

This test is not concerned with the lawyer’s good faith or intentions. Rather, it recognizes that it is simply not possible for the lawyer to “compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere.”

Conflicts are presumptively imputed to the rest of the firm

Importantly, the potential for disqualification does not stop at the individual lawyer who was consulted. The last clause of the definition of “client” noted above is important to emphasize: a lawyer’s client “includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work”.

In MacDonald Estate, the Supreme Court held there is a presumption that “lawyers who work together share confidences”. As such, where an individual shares confidential information with one lawyer at the firm, knowledge of that information is imputed to the lawyer’s colleagues “unless [the court can be] satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur by the ‘tainted’ lawyer to [other] members of the firm”.

In practice, this typically requires evidence that a comprehensive “conflict screen” was put in place in a timely manner to prevent the confidential information from being disseminated amongst colleagues. Such a screen usually involves securing the client file so that the information is accessible only to the lawyers and staff working on the matter, as well as undertakings from those persons that they will not discuss the matter with anyone else at the firm, among other precautions (see the guidelines under r. 3.4-20 of the Model Rules; the Ontario version is reproduced here).

It is certainly possible to set up a conflict screen when a lawyer with relevant confidential information joins a firm (i.e. before the lawyer starts work, so there is no opportunity for the information to be shared before the conflict arises); this is done routinely at large and mid-size firms when they make lateral hires. But it is much more difficult—if not impossible—to set up an effective screen when one party consults with a lawyer within the firm but does not ultimately retain the lawyer, and the opposing party in the same matter later seeks to retain another lawyer in the firm.

Why wouldn’t a conflict screen work in these situations? Let’s extrapolate from our TV examples to illustrate. When Tony Soprano consulted with various New Jersey family lawyers, each would have searched and determined that there were no conflicts at that time. Tony would have disclosed sensitive confidential information about his marriage and legal objectives and priorities in the divorce to the lawyer, who may have taken notes on the call and saved the notes to the firm files and/or discussed Tony’s matter with a colleague. Months later, when Carmela Soprano contacted the firm seeking to retain them to act against Tony, it would be too late to set up the conflict screen. Tony’s confidential information would have been accessible to the entire firm, whether through the firm files, or informal discussions amongst colleagues at the proverbial water cooler. Even if measures were taken immediately upon Carmela’s phone call, a court could not necessarily be confident that Tony’s confidential information was not shared.

Put another way, by consulting with various top divorce lawyers in their area, Tony Soprano and Tom Wambsgans very likely would have conflicted out not only the lawyers they spoke with, but those lawyers’ partners and associates, as well.

Delegating consultations to non-lawyer staff does not prevent the conflict

The “contamination” goes one step further—a lawyer or law firm can be conflicted out due to information shared by a client to non-lawyer staff at the firm. In Dalgleish v Dalgleish, [2001] O.J. No. 2187, the Ontario Superior Court held that a previous solicitor-client relationship existed based on contact between a prospective client and a legal assistant who did intake calls, stating:

31 There is no question in my mind that the working relationship of a legal secretary and her employer lawyer is such that, a prospective client speaking to a secretary in the context of considering whether or not to retain the lawyer, would not differentiate much between them. This is so, as far as the information trail is concerned. The prospective client would, under ordinary circumstances, expect the secretary to convey all of the information to her employer.

32 As is pointed out in the MacDonald Estate case, the focus should be on ensuring that the public has confidence in the integrity of the judicial system.

33 In this case, it would be reasonable to expect that any information given to the secretary by the prospective client would be imparted to [the lawyer].

A few years ago, I successfully argued a disqualification motion with similar facts.[2] In a high-conflict separation, both ex-spouses started out with local family law counsel, but later sought to retain senior Toronto-based lawyers when the matter was transferred to Toronto and appeared to be headed to a contentious trial. At an earlier stage, anticipating this possibility, the wife had consulted with two prominent Toronto family lawyers who had been recommended by a relative. One of these lawyers, Harold Niman, never actually spoke with her; he had his longtime assistant complete the intake call, which included a conflict check and a discussion of the background facts and the wife’s objectives in the matter. The wife ultimately retained a mid-career lawyer at a third Toronto boutique, but she later followed up with Mr. Niman to see if he would act as co-counsel if the matter proceeded to trial, as she wanted additional expertise. Mr. Niman said he was not interested in acting as co-counsel, but recommended a colleague at his firm.

In the meantime, the husband sought to retain the other senior lawyer the wife had spoken with; that lawyer sought her consent to act against her, but she declined to consent because she was worried the information she had disclosed to the lawyer in her earlier consultation could be used against her. The lawyer referred the husband to Mr. Niman. While the wife was still awaiting a call back from Mr. Niman’s colleague, she learned that Mr. Niman had accepted the retainer to act for her ex-husband (presumably of the view that he did not have a conflict because he not only was never retained, but had never spoken with the woman). Concerned that the sensitive information she had shared with Mr. Niman’s legal assistant could be used against her, the wife moved to disqualify Mr. Niman and his firm for acting against her. Her motion was granted.

The Court rejected the firm’s argument that the wife did not have a “solicitor and client relationship relevant to the matter at hand” because she never spoke or met with any of the firm’s lawyers. As in Dalgleish, the Court held that the wife’s conversations with the legal assistant were sufficient to satisfy the first part of the test from MacDonald Estate: the wife had contacted the firm with a view to retaining them; the assistant had performed a conflict search and collected information from her; the assistant passed at least some of this information on to the lawyer (both by asking Mr. Niman a question during one of the calls and sending an email to Mr. Niman with her notes from the call); and the conversations between the wife and the assistant “went beyond administrative and scheduling matters” (indeed, the court observed that the calls lasted a total of 40 minutes and the assistant had described the wife as “talkative”, both of which were consistent with the wife’s evidence that she had disclosed personal and confidential details of her situation in these conversations). The law firm was unable to discharge the “difficult burden” to displace the inference that the wife had imparted relevant confidential information to the firm.

Notably, in both this case and in Dalgleish, the court highlighted an important principle underlying disqualification in cases such as these, stating:

Family law cases and, especially, family law litigation, are different than most other legal areas. [In MacDonald Estate] Sopinka J. talks of clients baring their souls to counsel. This is even more the case in family litigation. Clients are nervous and often desperately seeking assistance. The issues are sensitive, especially so in custody matters. There exists in the family law case an emotional vulnerability in people that is often not found in other areas of law. The client must have faith that matters of substance discussed with a lawyer will be held in strict confidence.[3]

What if the disqualification is tactical?

On TV, it was apparent that Tony Soprano and Tom Wambsgans (and his father-in-law, Logan Roy, in his divorce from Shiv’s mother) had consulted with numerous lawyers for the purpose of precluding them from representing their spouses in divorce proceedings.

Although I cannot say this never happens in real life, this was certainly not the case in the Ontario decisions noted above. Indeed, in my 2019 case, the Court rejected the husband’s argument that the wife had brought the disqualification motion tactically and for the purpose of delaying the matter. The Court accepted the wife’s evidence that she had spoken to the two senior Toronto lawyers with a genuine intention to retain one of them, and held:

While it is unfortunate that the two Toronto lawyers that [the husband] wished to retain were previously contacted by [the wife], this is a coincidence. [The wife] has brought her motion without delay. There are many other excellent family law lawyers who [the husband] could promptly retain and reunification therapy can be commenced as soon as this occurs. (para 49)

Of course, if the scenarios from The Sopranos and Succession were to end up before a court, they may well have had a different outcome. There is a significant difference between a vulnerable ex-spouse consulting with two or three possible counsel in a large urban centre to determine which lawyer is the right fit, and a mob boss consulting with seven or eight of the top lawyers in a smaller region—such that even the lawyer suspects that the consultation was a “maneuver” to “contaminate” him.

The Supreme Court of Canada has expressly held—albeit in the context of the “bright line rule”, a slightly different basis for the disqualification of counsel—that parties cannot rely on conflicts rules “in a manner that is ‘tactical rather than principled’”.[4] In McKercher, the Supreme Court stated:

The possibility of tactical abuse is especially high in the case of institutional clients dealing with large national law firms. Indeed, institutional clients have the resources to retain a significant number of firms, and the retention of a single partner in any Canadian city can disqualify all other lawyers within the firm nation-wide from acting against that client. As Binnie J. remarked [in R v Neil],

[i]n an era of national firms and a rising turnover of lawyers, especially at the less senior levels, the imposition of exaggerated and unnecessary client loyalty demands, spread across many offices and lawyers who in fact have no knowledge whatsoever of the client or its particular affairs, may promote form at the expense of substance, and tactical advantage instead of legitimate protection. [Emphasis added; para. 15.]

Thus, clients who intentionally create situations that will engage the bright line rule, as a means of depriving adversaries of their choice of counsel, forfeit the benefit of the rule. Indeed, institutional clients should not spread their retainers among scores of leading law firms in a purposeful attempt to create potential conflicts.[5]

Although I am not aware of any Canadian cases addressing the conflict situations created by Tony Soprano and Tom Wambsgans,[6] I would suggest that the same principle should apply to these scenarios. In other words, if, like Mr. Niman, Shiv Roy’s preferred divorce lawyer believed she did not have confidential information from Tom and had accepted Shiv’s retainer, and Tom brought a motion to disqualify the lawyer on the basis of the test set in MacDonald Estate, the court might hold that having intentionally created a conflict as a means of depriving his adversary of her choice of counsel, Tom would forfeit the benefit of the rule.[7]

MacDonald Estate and the jurisprudence since then emphasize the ultimate goal of ensuring the public has confidence in the integrity of the legal profession and the judicial system, as well as the importance of permitting a litigant to retain their counsel of choice whenever possible. These would both weigh against disqualification of counsel on the facts from Succession.

The challenge, of course, would be proving that, when consulting with various lawyers, Tom was intentionally creating a conflict and not genuinely exploring his options. This would be a question of fact for the motions judge. I suspect it would be difficult for a judge to accept that a party legitimately felt the need to consult with “every useable lawyer in New York” before deciding to retain one.[8]

How can lawyers avoid being conflicted out by a litigant’s tactical maneuvers?

Carmela Soprano and Shiv Roy were not the only ones prejudiced by their fictional husbands’ tactics—so were the numerous lawyers who offered preliminary consultations to these men, possibly for free, only not to be retained by the husbands and to be precluded from accepting a retainer to act for their wives.

As noted above, lawyers cannot circumvent conflicts rules by delegating intake to staff. What else can lawyers do to prevent “tire-kickers” and spiteful ex-spouses from conflicting them out of real retainers?

Lawyers worried about this should take care to ensure that prospective clients do not disclose relevant confidential information in circumstances where the prospective client could reasonably (even if perhaps incorrectly) conclude that the lawyer has agreed to render legal services on his or her behalf.

My 2019 case provides some useful guidance. The Court observed that the legal assistant (i) had confirmed on the phone that she had completed a conflict search and the firm had no conflicts before the litigant shared the sensitive details of her situation, and (ii) never suggested that the litigant should refrain from providing relevant personal and confidential information until she formally retained the firm. Both these facts weighed in favour of the conclusion that the wife had reasonably believed that she could provide sensitive information to the law firm and it would be kept confidential (and not used against her).

Thus, to guard against being disqualified from acting based on a preliminary consultation, lawyers should consider expressly informing the prospective client—preferably in writing—that:

• by offering the preliminary consultation, the lawyer is not agreeing to render legal services on the prospective client’s behalf, but simply discussing background and legal information so the client and lawyer can decide whether a retainer would be a good fit; and
• the prospective client should not provide sensitive or confidential information in the preliminary consultation before formally retaining the lawyer.

Lawyers who draw these boundaries may find that the prospective client eschews the preliminary consultation altogether and seeks out a lawyer with whom they can have a more substantive discussion. There are risks either way—by opening oneself up to confidential information from prospective clients who may not retain them, lawyers can find themselves precluded from accepting a retainer for the opposing party, but lawyers conversely might discourage retainers from prospective clients by taking protective measures.

Ultimately, a business decision must be made about the best approach to prospective clients for a given lawyer or firm. But this business decision must consider the lawyer’s professional obligations. What must be avoided, in either case, is acting against a party who reasonably believes they have entrusted the lawyer with confidential information, and who legitimately fears that their trust may be betrayed and the confidential information could be used against them.

___________

[1] Readers who want more than a quick rundown are welcome to read two articles I’ve published on the topic: “Explaining disqualification: An Empirical Review of Motions for the Removal of Counsel”, (2020) 45:2 Queen’s Law Journal 199, and “The Not-So-Bright Line Rule: Lingering Questions About Lawyers’ Duty to Avoid Conflicting Interests: CN Railway v McKercher”, (2014) 42 Advocates Quarterly 422.

[2] Barrese v. Barrese, 2019 ONSC 3137, leave to appeal denied (unreported).

[3] Dalgleish v. Dalgleish, [2001] O.J. No. 2187 (S.C.) at para 36, cited with approval in Barrese, ibid, at para 50 [emphasis added].

[4] R. v. Neil, 2002 SCC 70, at para 28, cited in McKercher at para 36.

[5] McKercher at para 36 [emphasis added by the Court].

[6] As always, readers should feel free to leave a comment or reach out if there are any cases I’ve missed on this point.

[7] The Court in Barrese, supra, similarly noted that disqualification motions may be refused “when the true reason for the motion is tactical”: see para 36.

[8] In my 2014 article “The Not-So-Bright Line Rule: Lingering Questions About Lawyers’ Duty to Avoid Conflicting Interests: CN Railway v McKercher” (cited in note 1 above), I noted at pp. 441-442 that the Supreme Court in McKercher set an “impossibly high standard” in concluding that CN’s disqualification motion was not tactical because the moving party had not proven that CN had been purposefully spreading out its legal work across numerous law firms in a deliberate attempt to prevent opposing litigants from retaining effective legal counsel. I remain of the view that the standard to demonstrate that a motion is tactical may be exceedingly high—but I also think Shiv Roy and Carmela Soprano could likely meet the standard on their facts.