Lakhoo v. Lakhoo, 2011 ABQB 526

Court of Queen ’ s Bench of Alberta Citation: Lakhoo v. Lakhoo, 2011 ABQB 526 Date: 20110825 Docket: 4801 146333 Registry: Calgary Between: Shamim Lakhoo Plaintiff - and - Rahim Lakhoo Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] Shamim Lakhoo (the wife) initially met with Diana Richmond to consult with her on a family law matter in May 2010. At the time Ms. Richmond was a partner in the law firm Foster Richmond LLP, now Foster McGurk Vanin LLP.

At the initial meeting, the wife explained the issues regarding a marriage contract and property agreement between herself and Rahim Lakhoo (the husband). In November 2010, the wife emailed Ms. Richmond to advise her that she had decided to proceed with an action. As a result, a statement of claim for divorce and division of matrimonial property and a notice to disclose were filed in December 2010. During November and December 2010, Ms. Richmond communicated with the husband’s lawyer at the time. Those discussions included discussions about interim support. Also during that period of time, Ms.

Richmond advised the wife that articling students at Foster Richmond had done research on the law with respect to pre-nuptial agreements.

[ 2 ] Ms. Richmond left the Foster Richmond firm in December 2010 and took this file with her. Mr. Foster deposes in an affidavit that he had understood that along with the physical file, Ms. Richmond also took the electronic information for all her clients with her. He also deposes that the November conversations between the wife and Ms. Richmond occurred at times when he was away from the office on holidays. Mr. Foster also swears that he did not receive any confidential information from Ms. Richmond regarding the wife and attaches to his affidavit an e-mail from Ms.

Richmond confirming that he did not receive any confidential information from her. Mr. Foster also swears that on June 27, 2011 another search was done of the computer system at which time a file entitled “Lakhoo”, which he assumes relates to Ms. Richmond’s representation of the wife, was discovered. The file was not read it was removed to a flash drive by the office manager and then deleted from the computer system. Nobody in the office reviewed the file before it was reviewed. [ 3 ] It should also be noted that Ms. McDonald was Ms.

Richmond’s assistant both when she was at the Foster Richmond law firm and after she left. Ms. McDonald left the firm on December 24, 2010. It is clear from statements of account sent to the wife that Ms. McDonald worked on the file. Ms. McDonald cohabits with and is engaged to Mr. Vanin, currently a partner at Foster McGurk Vanin. [ 4 ] The wife swears that she has difficulty believing that her case had not been discussed with members of the Foster Richmond firm while she was a client of Ms. Richmond.

The husband filed an affidavit listing the other senior family law lawyers who he has consulted, all of whom are unable to act for one reason or another. Finally, it is admitted that the husband was not a client of the firm before the marital issues in the action arose. [ 5 ] Mr. Foster now applies for permission to act for the husband in this action. ANALYSIS [ 6 ] Markin v. Macdonald Estate (Gray) [1990]3 S.C.R. sets out the principles to apply in case where there may be a conflict.

Sopinka, J. identified three competing values which underlay consideration of a conflicts question: the right of litigants not to be deprived of their chosen counsel, the need to maintain high standards in the legal system and the desirability to permit reasonable mobility on the profession (para. 16). [ 7 ] With those values in mind, there are two questions that the court must answer. The first is whether the lawyer received confidential confirmation attributable to a solicitor and client relationship relevant to the matter at hand.

The second is whether there is a risk that the information will be used to the prejudice of the client (para. 48). [ 8 ] In this case the answer to the second question is obvious. If members of the current Foster firm received information from the wife’s file, there is a significant risk that it would be used to her prejudice. It is the first question that is central to this case. [ 9 ] Again, it is Sopinka, J. in MacDonald Estate which guides the analysis.

He says at para. 50: In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. [ 10 ] The standard which must be met in discharging the burden is whether a reasonably informed member of the public would be satisfied that no confidential information was passed on.

He goes on to say that there is a strong inference that lawyers who work together share confidences (para. 51). [ 11 ] Finally, at para. 52, he says: A fortiori understandings and conclusory statements in affidavits, without more, are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying, “Trust me”. This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not.

[ 12 ] In Cheen v. Cheen [2006] A.J. No. 31 , our Court of Appeal addressed these principles in the context of a family law case. The court noted that the relationship between family law lawyers and their clients is very personal (para. 21). [ 13 ] In this case, Mr. Foster has provided affidavit evidence that neither he or others in the firm received confidential information. I accept that evidence. However, am I sure that there won’t be information uncovered in the future as the file progresses?

Is it possible that the production of a document or answers received during questioning twigs a memory or rings a bell about a conversation during the time that the wife was a client? These questions lead me to conclude that the application must be dismissed. The Foster firm is in a conflict by acting for the husband. There are several other senior family law practitioners from which the husband can choose. Heard on the 4 th day of August, 2011. Dated at the City of Calgary, Alberta this 25 th day of August, 2011. C.A. Kent J.C.Q.B.A. Appearances: Judy N. Boyes, Q.C. Davis LLP for the Plaintiff J.

Patrick Peacock, Q.C. Peacock Linder & Halt LLP for the Defendant