When does a lawyer's personal relationship with the client mean the lawyer cannot act?

Kam v. Hermanstyne 2011 ONCJ 101, a recent Ontario Court of Justice decision, is of great potential significance.

The decision dealt with the narrow issue of whether a lawyer who was romantically involved with a party in a family law dispute should be removed from the record. In the specific case the court ordered the lawyer removed even though it would lead to the party being unrepresented.

The decision, however, is broader in analysis than simply a specific family law context. It deals with a lawyer representing a spouse and even a lawyer representing a friend.

The decision may be misread as a precedent to say counsel cannot act except where there is no relationship with the client. Such was surely not the intention of the court but the point is open.

The court notes:

13 In Chouinard v. Chouinard, 2007 CanLII 36076, (2007), 159 A.C.W.S. (3d) 896, [2008] W.D.F.L. 852, [2007] O.J. No. 3279, 2007 CarswellOnt 5460 (Ont. S.C.), the court was faced with the issue of whether to remove counsel who was a friend of his client. Justice Douglas K. Gray stated, at paragraph 21 (my emphasis):[FN1]

[21] It is clear that if a solicitor is involved in an intimate personal relationship with his or her client, in most cases that solicitor cannot act as counsel for the client in an adversarial proceeding. That is because the necessary degree of independence that is required for the solicitor to give unvarnished, independent advice is lacking and it is a reasonable assumption that the solicitor cannot conduct the litigation with the necessary emotional detachment.

14 In McWaters v. Coke, 2005 ONCJ 73, 16 R.F.L. (6th) 271, [2005] O.J. No. 996, 2005 CarswellOnt 989 (Ont. C.J.), Justice Marvin A. Zuker was faced with a motion to remove counsel from the record because he was the husband of the applicant. Justice Zuker's reasons are cited below in their entirety:

The reasons for my decision are as follows:

{1} The court must weigh the potential for any breach of a lawyer's fiduciary obligations to his or her client and any likely confusion of his or her personal and professional roles.

{2} The court must consider a lawyer's personal involvement and whether that may impair his or her — in this case his — professional judgment.

{3} The solicitor-and-client relationship is a fiduciary one and a lawyer's obligation is heightened if a client is emotionally vulnerable to the extent that the client's ability to make reasoned judgments about the future is affected.

{4} The solicitor-and-client relationship is characterized by the dependence of a client on a lawyer's professional judgment and a relationship may well result from a lawyer's exploitation of his dominant position.

{5} The relationship creates, in this case, the potential, at least, that the lawyer may be called as a witness on behalf of the client.

{6} The fiduciary relationship is one of trust in the client or of a client in his or her lawyer in return for the lawyer's placing the interests of the client ahead of any self-interest of the lawyer.

{7} In these proceedings, the highest standard of ethical conduct is required. The more vulnerable the client, the heavier the obligation that the lawyer has to avoid engaging in any relationship other than that of solicitor-and-client.

{8} The client must be protected against the strong influence to which confidential relations naturally give rise. A solicitor-and-client relationship involves a very high level of trust and confidence. And confidence must not be used to the detriment of the prejudice of the rights of the party bestowing it.

{9} The Law Society's Rules of Professional Conduct, in particular subrule 2.04(3), is distinguished. The consent of the applicant is not relevant in these proceedings. A lawyer's freedom of action and judgment is subject to other interests, duties and obligations. Any counsel is an officer of the court, and he or she must fulfill his obligations as such and to the administration of justice.

{10} Great sensitivity, of course, is required in a family law context. I refer, in particular, of course, to MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 121 N.R. 1, 70 Man. R. (2d) 241, 285 W.A.C. 241, [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249, 48 C.P.C. (2d) 113, 1990 CanLII 32, [1990] S.C.J. No. 41, 1990 CarswellMan 233, which refers to an objective standard in making such a determination.

…

20 I realize that the result of this decision may be to deprive the respondent of legal representation. However, while it is generally preferable for parties to have counsel rather than to proceed unrepresented, the lack of counsel does not in and of itself mean that the respondent will be deprived of his fundamental right to justice. In our courts, a very large percentage of litigants are self-represented. Judges work hard to ensure that the playing field is maintained as evenly as possible, particularly in cases where one side is represented and the other side is not. And in this particular case, the respondent will doubtless have the added benefit, not available to most other self-represented parties, of behind-the-scenes legal advice from Ms. D F.