Why all the questions?
During your first call to find a lawyer you should be asked for preliminary information before receiving any legal advice. Among other things, for family law matters, this includes the full names (including previous surnames) of you, your former partner and any prior or new partners. This allows the lawyer to determine if other potentially involved parties previously consulted the lawyer. This can create a conflict of interest.
The Nova Scotia Professional Code of Conduct requires lawyers to take “all reasonable steps to avoid circumstances likely to create an actual or perceived conflict.” It is presumed a lawyer receives confidential client information and breaches duties owed to clients by using (or even having the potential to use) that against a client in any subsequent related matter, unless the former client waives the conflict. These rules apply to all lawyers in a firm even if they had no direct involvement with the file.
Conflicts arise in many ways. Here are some typical family law examples:
• Joe and Jenny are married. “Lawyer A” represents Joe’s business. If they later separate, Lawyer A’s firm should not represent Jenny regarding this separation.
• While married “Lawyer B” prepares Joe and Jenny’s Wills. Lawyer B’s firm should not later represent either in a proceeding related to their separation.
• While married, Joe and Jenny want to buy a house. Jenny’s parents pay part of the cost and guarantee the mortgage. Joe and Jenny retain “Lawyer C” to process the purchase and mortgage. She meets Jenny’s parents to have them sign the mortgage. She doesn’t recommend a written agreement that says what happens if Joe and Jenny separate and/or default on the mortgage or recommend that Jenny’s parents get independent legal advice. When Joe and Jenny later separate they default on the mortgage and disagree if the house equity from her parents’ money belongs to Jenny or should be shared. During separation negotiations or divorce proceedings, Lawyer C’s firm should not represent Joe, Jenny or her parents.
• “Lawyer D” represents Jenny in a motor vehicle claim while married to Joe. She uses some of the settlement money to pay down the mortgage on the family home. When they later separate, Jenny wants Joe to repay this. Lawyer D’s firm should not represent Joe in the divorce proceeding.
• After separation from Jenny, Joe begins living with Ann. She’s working and they share expenses. Joe brings Ann to meetings with “Lawyer E” to discuss Jenny’s claims. Jenny may ask for Ann’s financial information or a court may require it to be produced. Joe and Ann later separate. Joe asks Lawyer E to try to settle Ann’s claims. Ann feels she gave confidential information to this lawyer. She refuses to waive conflict. No member of Lawyer E’s firm can represent Joe.
When calling to ask for representation it is important to give the requested information and advise if you can think of any other situations that might create potential conflicts.
A Nova Scotia lawyer since 1986, Kay Rhodenizer grew up in Lunenburg County and recently moved to New Minas. As counsel at MDW Law, Halifax (www.mdwlaw.ca) she represents clients across Nova Scotia focusing on family law and estate dispute resolution. She can be reached at Kay@mdwlaw.ca