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BARRISTERS AND SOLICITORS - Disqualification or removal - Relationship with client

Friday, March 29, 2019 @ 8:33 AM  

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Application by Stanfield for directions as to whether Moodie could act for him in the Court of Appeal. Stanfield had sued Schneider for failure to complete a settlement. He unsuccessfully sought to add Schneider’s then-counsel, Low, to the action. His appeals from the striking of his claim as against Low and the denial of his proposed amendments were dismissed. After Stanfield filed notices of appeal of both dismissals, Schneider, the remaining defendant, successfully applied to have Moodie removed as counsel. The application judge found Moodie could not continue to act as counsel given his potential to be witness. Schneider was not a party to the appeals. Moodie had acted for Stanfield throughout the proceedings, including the negotiation of the settlement. Moodie submitted he would undertake not to give evidence on appeal or to cross-examine Low on his affidavit.

HELD: Application allowed. The application judge did not intend for the removal order to extend to the appellate proceedings. Moodie was in a position of conflict. It was not established Moodie would be able to abide by any undertaking not to give evidence in the appellate proceedings, act with objectivity or compartmentalize his mind to separate his own observations and beliefs from his duties to the court and to his client. His ability to act in Stanfield’s best interests was compromised. Moodie was restrained from acting as counsel for Stanfield on any matter arising in the appeals.

Stanfield v. Low, [2019] A.J. No. 260, Alberta Court of Appeal, J. Antonio J.A., March 4, 2019. Digest No. TLD-March252019009