Real-World Ethical Problems in Sole and Small Practices

Are you doing it all on your own? Ethical issues can be difficult for the sole or small firm lawyer to deal with since there may not be the opportunity or support to talk through the challenges. Our panelists will give real-world examples of ethical issues that have arisen in their practice with other panelists weighing in on how they would handle the problem. Finally, a lawyer from LSUC will give her thoughts on the dilemmas raised.

• How to deal with conflicts of interest that arise when acting for more than one party in estates and property matters
• What to do when a client is not forthcoming about a material issue in litigation.

Professionalism Content:

Jane Martin, Dickson Appell LLP

• Ethics and Professional Responsibility (best practices for analyzing ethical dilemmas, confidentiality)
• Client service (managing difficult clients, joint retainer)

Scenario: I was consulted by a woman on behalf of her 18-year-old college student son. He is a beneficiary of his paternal grandfather’s estate; she is in the process of divorcing his father. Her explanation for looking for legal advice on his behalf was understandable, he was out of town for school, there was urgency, he was just 18 and needed support in decision-making. So I was told.- I agreed to will act for the son, and it was agreed by him that correspondence and advice will be shared with the mother so that she can support her son’s decision making and instructions. A joint retainer was signed clarifying this relationship. The mother has some tangential issues, which I believed would be answered in the course of receiving information about the management of the estate. I now know that those issues underlay the deterioration of my relationship with the clients.

The estate was involved in litigation (an application to pass accounts). I reviewed the accounts on the son’s behalf, and objections proposed. The instructions were given to serve and file the objections. Replies and supporting documentation were received. I advised the son that the objections should be withdrawn and the accounts approved. He was/is at risk of becoming liable for legal costs of other parties at this point. The mother rejects your advice. She wishes to pursue the tangential issues (which you are of the opinion have been answered) – and insists that you take steps to escalate the litigation. This escalation is not in the son’s financial interests. The son is silent with respect to instructions on this point. What to do?

• Clarify the relationship with who the client is;
• Clarify the costs risks and benefits of the son adopting the mother’s instructions;
• Identify that a conflict of interest has arisen such that the financial (and legal) interests of son and mother are no longer aligned;
• In this case, I got fired and my account is being assessed…

What should I have done:

• Much more clarity around who the client is, scope of the retainer and
• It was not clear prior to being retained, although it is in hindsight, that the family law issues between the mother and her ex-spouse were driving her ‘support’ to her son. At the time I was dismissed, I had drafted a letter suggesting that a conflict of interest has arisen between the mother and son such that it was no longer possible for me to continue to act for both, and proposing a meeting to discuss how they could move forward (my suggestion would have been with new, separate advisors).
• I frequently have ‘helpful’ family members interfere in lawyer-client relationships and this is just one example.

Shelina Ali, Iler Campbell LLP

• Ethics and Professional Responsibility (best practices for analyzing ethical dilemmas, confidentiality)
• Client service (joint retainer)

Scenario: A long-time client has retained us for new development project (Client A). Client A is working with a new partner organization and we have been instructed to accept instructions from the head of partner organization. We are never retained to work for the partner organization. After Client A has acquired the property and during the development of the property, the head of the partner organization comes to us and requests legal assistance for a personal matter (not related to the organization or our client’s project) (Client B). The personal matter involves representing Client B and a family member (Client C) in the transfer of the property, as well as the mortgagee (Client D). We are jointly retained and the parties understand there is no confidentiality between the three parties as it relates to the property transfer.

During the course of representing Client B, C and D in the personal matter, our firm discovers multiple enforceable orders against Client B which seem to be tied with his work at the partner organization working with Client A. Further, during the transaction Client B tells counsel for Client D that we have asked that they not contact us with questions or concerns and also tells counsel for Client D that we are the longstanding lawyers for Client B and know Client B very well (we have only known Client B for 6 months). At the same time, Client A is beginning to receive construction advances and is allowing Client B to provide instructions to us on releasing those funds for Client A’s project. Based on our knowledge of Client B’s financial situation and dishonest statements, is there a conflict and how do we manage the following:

• Our obligation to Client A to ensure that construction funds aren’t misused
• Our obligation to Client B to maintain confidentiality concerning what we have discovered about his financial situation and his dishonest statements
• Our obligation to Client C who is an elderly family member providing minimal instructions to us
• Our obligation to Client D, the mortgagee financing the personal property transfer

Glenn Stuart, Stuart Law

• Ethical Advocacy (encouraging respect for legal institutions)
• Ethics and Responsibility (best practices for analyzing ethical dilemmas).

Scenario: The scenario I would use involves a client who may, or may not, be candid with you on a material issue, and how one assesses that, and, in turn, responds. The scenario arises in a civil litigation context (although I am pretty confident that the issue is more universal). In a nutshell, the situation arises when your client provides you with documents for an affidavit of documents that the client must have obtained from a third party because they relate to litigation the client was not privy to. The client tells you that these arguably relevant documents were obtained from a court file. You accept that answer because they are pleadings. He tells you he had no contact with the parties to that litigation. Subsequently, the client produces other documents regarding the same matter, but they are documents that would not typically be in a court file. This hopefully leads into a discussion of options. I may revise the scenario prior to the session for a few reasons, but the issues would be the same. (I may just try to simplify the facts though.)