Moad v Shepherd, 2017 ABQB 330

Court of Queen’s Bench of Alberta Citation: Moad v Shepherd, 2017 ABQB 330 Date: 20170517 Docket: 1601-01677 Registry: Calgary Between: Marina Moad Applicant - and - Timothy Willis Shepherd Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.

Antonio _______________________________________________________ Overview [ 1 ] The Applicant, Marina Moad, asks me for two forms of relief: to set a trial date, and to remove opposing counsel from the file for an alleged conflict of interest. [ 2 ] Ms Moad and the Respondent, Mr Shepherd, are sister and brother. Their mother, Elizabeth Shepherd, is now 85 years old and living in a care facility. Counsel advise me that she is unable to make her own decisions, but that no guardian or trustee has been appointed. Mrs Shepherd executed a power of attorney and personal directive in 2014. She executed new ones in 2016.

The former set of documents designated Marina Moad as decision maker, and the latter designated Mr Shepherd. The lawyer who executed the 2016 documents, Sherilynn Kelly, signed two certificates of legal advice, committing to writing her opinion that Mrs Shepherd “appeared to [her] to understand the nature and effect” of the documents. [1] Ms Kelly and Mr Shepherd’s counsel, Mr Pieschel, are at the same law firm.

[3] Ms Moad contests the validity of the 2016 documents on a capacity basis. Her counsel asks that 5 days of trial be set; datesare available in 2018. Mr Shepherd is represented by counsel form Parlee McLaws, who says that the trial will take 6 to 8 days. The firstavailable dates for that duration are in 2020. [4] Both remedies are granted for the reasons that follow. Conflict [5] Courts will be slow to interfere with a client’s choice of counsel.

But the supervisory jurisdiction of the courts over counselincludes a discretion to remove counsel or firms from a file when they are in a conflict of interest: McDonald Estate v Martin, (SCC), [1990] 3 SCR 1235. [6] It is trite that a lawyer should not act as both witness and advocate on the same file since, in general, this will create aconflict of interest. The first question a court will ask when considering removal is whether the lawyer is likely to become a witness inthe matter.

This test parallels the language in Rule 5.2-1 of the Alberta Code of Professional Conduct [“the Code”], in recognition of thefact that the Code is an important statement of public policy: Forward v Zurich Insurance Co, 2002 ABCA 123. A negative answer tothe “likely witness” question may end the inquiry: eg Lion’s Gate Homes v Henning, 2006 ABQB 95. But the Court’s overridingconcern is whether “the preservation of the integrity of the system of justice” requires counsel’s removal: Forward, supra. [7] The same considerations may extend to one member of a firm acting as advocate when another appears as witness.

At law,and under the Code, lawyers at one firm “are identified as one”: Harvard Investments Ltd v Winnipeg (City) (1994), (MB KB), 93 Man R (2d) 269 (QB), qtd in Forward, supra. When a lawyer is a witness, her associate’s duty of objectivity before thecourt and duty to the client may be at odds with the parallel interests of the partner: Counsel is expected to be loyal to his firm member who is now a witness. How can counsel properly discharge his obligation as counselif he is, in fact, honour bound to be loyal to a witness?

How can counsel in such circumstances be expected to argue an issue ofcredibility with respect to the evidence of his firm member? Furthermore, the client may also ask whether the counsel’s loyalty to thewitness surpasses his loyalty to the client’s interest. [Harvard Investments, supra, qtd in Forward, supra] An advocate’s role before the court may be impaired “where the witness is a partner ... of the law firm ... and the other lawyer’s evidenceconcerns a matter arising from the law firm’s practice.

The advocate then has an interest in the court accepting the lawyer’s evidence as its rejection reflects on all members of the firm”: Oliver, Derksen, Arkin v Fulmyk, (1995), (MB CA), 126 DLR (4th)123 (Man CA). [8] In my view, this rationale is not confined to concerns about any credibility findings the court may make if a lawyer at thefirm testifies. It would also apply if her conduct of a legal matter is the subject of litigation.

The advocate may find himself in a conflictbetween presenting the firm in the best possible light and remaining objective before the court: eg Downham v Wawanesa MutualInsurance Co, 2005 ABQB 299. Worse, his client may question whether he is able to offer objective advice. This view finds support inRules 3.4-1, 3.4-12, 5.1-1 and 5.6-1 of the Code. [9] The Respondent’s position is that Ms Kelly may not ultimately be a witness, and that since she plans to retire in 2018 therewill be no conflict at the trial (which the Respondent submits should be scheduled in 2020).

Given my direction below to set the trial in2018, and since the precise date of her retirement is not certain,[2] I need not consider the latter submission. In any event, since the issueturns on Ms Kelly’s conduct while she was a member of the firm, her retirement would not necessarily erase conflicts springing from thefirm’s reputation. [10] Mr Pieschel provided me with rule 5.2-1 of the Alberta Code of Professional Conduct, which deals with “The Lawyer asWitness.” He submits that I should place weight on a revision that removed an express reference to a lawyer acting when his partner orassociate is a witness.

I note that the current version of the Code defines “lawyer” to include “the lawyer’s firm and each firm memberexcept where expressly stated otherwise or excluded by the context.” Therefore, the revision did alter the meaning of the Rule in thisrespect. However, the revision did change a verb from “should” to “must”. The current wording, “A lawyer who appears as advocatemust not testify”, is mandatory, and by definition includes members of the same firm. [11] Mr Pieschel points me to precedents where counsel was permitted to act despite a partner appearing as a witness.

The facts ofthese cases are distinguishable, for instance because the lawyer’s prospective evidence was of limited centrality or controversy, orbecause the application to remove counsel arose mid-trial, or because at the time of a pre-trial application it could not yet be determinedwhether the “likely witness” test could be met.

Even where they found exceptions, indeed because they framed their findings asexceptional, these judgments do nothing to undermine “the rule prohibiting a member of a firm from acting as counsel in a case whereanother member of the firm is a crucial witness”: Stevens v Salt (1995), (ON SC), 22 OR (3d) 675 (Gen Div), qtd in3629024 Manitoba Ltd v Harris, 2001 MBQB 349. [12] The essence of the dispute between the parties is whether Mrs Shepherd had capacity at time the 2016 documents wereexecuted. Ms Kelly was present for their execution and is therefore a likely witness.

The parties have identified an issue of solicitor-client privilege that may or may not render some or all of her testimony inadmissible. That issue is not before me, and may be litigated inthe future, so I will not comment on it. I will note in that the admissibility of evidence is a distinct question from its materiality, and thatevidence may be required to determine the privilege question.

Since Ms Kelly is a likely witness, her firm is in conflict while it acts inthis litigation. [13] Beyond the likely witness test, a conflict arises because Ms Moad questions the validity of legal documents executed by MsKelly, and by implication the reliability of statements she made in her certificates of legal advice. The court’s findings stand to reflect onall members of Ms Kelly’s firm. On this basis as well, members of her firm are in conflict. [14] I note that a client can waive a potential conflict between his interests and his counsel’s.

However, there is no evidence beforeme that Mr Shepherd has been informed of a conflict or potential conflict, nor that he has waived it. In any event, a client cannot waive

his counsel’s conflict with his duties to the court: Downham, supra . [ 15 ] Mr Pieschel may remain on file long enough to sign the Order that results from this decision. After that, he and his firm are removed as counsel of record for Timothy Shepherd. Trial dates [ 16 ] Having heard the submissions of both counsel, I am satisfied that this trial can be heard in five days. I trust that counsel can work together to streamline the evidence, in the spirit of Rule 1.2 of the Alberta Rules of Court and employing the provisions of

Part 7 as appropriate. Discrete issues such as the question of solicitor-client privilege can and should be determined before trial. [ 17 ] The parties will set this matter for a 5-day trial in the spring 2018 session. [ 18 ] If there are any rulings that can be made by the trial judge before the trial proper begins, counsel will take steps to have a trial judge assigned, and to

schedule any pre-trial applications. The hearing of these applications will not exceed one day, unless leave to

schedule additional time is granted by the assigned trial judge. [ 19 ] Any new counsel whom Mr Shepherd may retain must comply with this schedule. [ 20 ] Nothing in this decision relieves the parties of any procedural or administrative obligations with respect to having the matter set for trial. Costs [ 21 ] Since Mr Shepherd may need some time to retain new counsel, costs of this application are reserved to be argued in the cause. Heard on the 9 th day of May, 2017. Dated at the City of Calgary, Alberta this 17 th day of May, 2017. J. Antonio J.C.Q.B.A. Appearances: Jennifer R. Lamb for the Applicant William R. Pieschel, Q.C. for the Respondent