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BARRISTERS AND SOLICITORS - Disqualification or removal - Relationship with client

Wednesday, October 28, 2020 @ 7:30 AM  

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Motion by the applicants to remove the respondent’s lawyer as his lawyer of record. The deceased died in 2016. Her will named the respondent, one of her 11 children, as her sole Estate Trustee. The applicants, some of the respondent’s siblings, applied to remove the respondent as Estate Trustee. The respondent’s lawyer was previously married to one of the deceased’s daughters, not an applicant, until their divorce in 1994. He acted on behalf of two applicants in legal retainers several years earlier. An assessment of the deceased was conducted in his office in 2014. In 2017, the lawyer indicated the respondent would retain separate counsel if the estate issues became litigious but later reversed his decision. The trial was scheduled to proceed in February 2021.

HELD: Motion dismissed. The applicants did not demonstrate that the fact the lawyer expressly or impliedly represented he would not act for the respondent in future litigation involving the estate represented good cause for depriving the respondent of his choice of counsel. The public would be satisfied that no use of confidential information would occur by reason of the lawyer having acted for two of the applicants in the past. There was little likelihood the lawyer would be called as a witness to any issues raised by the proceeding.

Grant v. Grant Estate, [2020] O.J. No. 4013, Ontario Superior Court of Justice, D.A. Broad J., September 22, 2020. Digest No. TLD-October262020005