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BARRISTERS AND SOLICITORS - Relationship with others - Duty as officer of court

Thursday, May 24, 2018 @ 8:24 AM  


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Application by S, counsel for one defendant, for an order striking out allegations against him in an application for summary judgment brought by the plaintiff. Application by the plaintiff for costs against S. The plaintiff sued for serious injuries suffered in a boating accident. The plaintiff sued the estate of the deceased driver and A, a passenger. S represented the personal representative of the estate until 2016. The plaintiff’s claim greatly exceeded the value of the estate. In his application for summary judgment, the plaintiff claimed that S caused the estate to expend unreasonable legal costs in defending this action. S consented in January 2015 to an order that admitted liability of the estate, subject to contributory negligence, and an assessment of damages.

HELD: Application by S allowed. Plaintiff’s application dismissed. S was prejudiced because a claim was being made against him when he was not a party and because he was forced to defend allegations when to do so might engage duties and obligations to his former client which he was ethically bound not to compromise. The allegations placed him in a conflict of interest with his own client. This was a very serious application to make against a lawyer, an officer of the Court, involving very strong allegations. The evidence did not establish that S had in any way undermined the authority of the Courts or interfered with the administration of justice. There was nothing to warrant a conclusion that he had engaged in any misconduct. All he had done was defend a claim brought against his client.

Washburn v. Marshall (Representative of), [2018] A.J. No. 463, Alberta Court of Queen's Bench, R.A. Jerke J., April 17, 2018. Digest No. TLD-May212018007