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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11 (permalink)  
Old 11-11-2016, 12:16 PM
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Originally Posted by blinkandimgone View Post
If its been a year it's a bit late to be crying conflict of interest now...?
Yes. 99% of the time the whole conflict of interest is a tactic to try and stall and/or gain an advantage. My recommendation to triton is to stop with the nonsense and settle the matter and to stop looking for "angles" to "win".

Something to consider:

Lawyer won?t be banned from McCain heiress annulment case because no evidence he?ll use her secrets | National Post

If someone with McCain money (french fries) can't get it done then you have no hope in hell.

McCain v Melanson, 2016 ONSC 6350 (CanLII)
Date: 2016-10-18
Docket: FS-16-00409757
Citation: McCain v Melanson, 2016 ONSC 6350 (CanLII), http://canlii.ca/t/gv6pf

Good Luck!
Tayken
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  #12 (permalink)  
Old 11-11-2016, 01:30 PM
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Did she take notes? Very likely. Did she discuss with the counsel? Very likely.

It has been over 12 months since OP retained OC and it has been approx 2 years since I had this conversation with OC assistant
A receptionist generally does not take comprehensive notes. A legal clerk would probably write a short memo if an appointment was made, listing the biographical information and the issue for the appointment. If no appointment was made, or if the appointment never happened, the information was probably shredded. The lawyer may not know you spoke to staff.

I agree with other posters above - if it has not been an issue for the past year then it is not an issue.
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Old 11-11-2016, 10:47 PM
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Originally Posted by OrleansLawyer View Post
A receptionist generally does not take comprehensive notes. A legal clerk would probably write a short memo if an appointment was made, listing the biographical information and the issue for the appointment. If no appointment was made, or if the appointment never happened, the information was probably shredded. The lawyer may not know you spoke to staff.

I agree with other posters above - if it has not been an issue for the past year then it is not an issue.
It certainly had been an issue, i raised it with my counsel immediately when I became aware of it, counsel basically never responded to my initial response and when I asked about it at a later meeting she basically said it would have had to been done when opposing counsel came on record - being completely ignorant of the fact that she didn't read and/or ignored the reply.

There was more than 1 phone call, it was a through conversation, to arabian, lots of people have conversations with the clerks, the clerk advised the lawyer wasn't taking cases for another 6 months and wanted to know what the case was about and so I told her everything. I am more than sure she made notes, discussed with opposing counsel, and confirmed an appointment date.

I am bringing forward a motion anyhow for a Christmas schedule, travel rights, and additional disclosure and I don't think it will hurt to mention this as part of this motion. Any thoughts?

The legal advise I have got recently is that the courts may not order OP off record due to prejudice being caused on OP but it should be mentioned to the courts.
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Old 11-11-2016, 11:41 PM
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Then take a "chill pill" - unless you were a paying customer they likely tossed notes in the trash. He said/she said stuff is not useful to a competent lawyer anyhow.

Sounds like you are over-analyzing your situation?

Focus on the important stuff. If you mention this you will hoop yourself IMO. No relevance... grasping at straws...

Learn to keep your cards closer to your chest now and in the future. If you are rattled by someone or something don't let on. Be Mr. Cool.
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Old 11-12-2016, 02:09 AM
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Originally Posted by arabian View Post
Then take a "chill pill" - unless you were a paying customer they likely tossed notes in the trash. He said/she said stuff is not useful to a competent lawyer anyhow.

Sounds like you are over-analyzing your situation?

Focus on the important stuff. If you mention this you will hoop yourself IMO. No relevance... grasping at straws...

Learn to keep your cards closer to your chest now and in the future. If you are rattled by someone or something don't let on. Be Mr. Cool.
so you're saying 2/3 lengthy phone calls to her law office (evidenced by cellphone bill) and a written note of a referral to a lawyer is not suffice to satisfy that I had discussed my particulars?

The assistants note may very well be in the trash or it may very well be on her calendar bookmark in outlook - we don't know.

I did sent OC a letter advising her of the conflict of interest, I don't think she'll respond, she may or she may not. TO bring the issue up in court, I'm not sure, the judge may or may not order her off. From the judges standpoint, there is probably cause that she has or has read information

Does a letter to the lawyer have any negative effects of a motion that some of you are warning against?
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  #16 (permalink)  
Old 11-12-2016, 02:13 AM
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I was thinking something in the form of:


A solicitor may be removed from the record and disqualified from representing a party where he or she: is in a conflict of interest; has acquired confidential information from an opposing party; or otherwise creates the appearance of impropriety because of any previous contact with an opposing party.
Rather than applying some absolute principle, Fletcher Moulton L.J. stated [at p. 840]: "The Court must act in each case according to the circumstances of the case."

Later in his reasons for judgment, Fletcher Moulton L.J. spoke of balancing "the high standard of behaviour which it requires of its officers and the practical necessities of life" [p. 841]. It is obvious that the balancing procedure requires an assessment of the facts in individual cases, rather than the • application of absolute rules.

Opposing counsel had the right, if not the duty, as an officer of the court to raise this conflict where the circumstances were that they would cast a shadow upon the integrity of the administration of the justice - Ontario Inc. v. Mortgage Insurance Co. of Canada et al.

Opposing counsel has acted discourteously and may have demonstrated lack ofprofessionalism and appropriate demeanour. Carleton v. Beaverton Hotel

It is an inherent jurisdiction of the court to remove from the record solicitors who have a conflict of interest. See MacDonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at paragraph 21 (per Sopinka J.) and Ontario Realty Corp. v P. Gabriele & Sons Ltd., [2006] O.J. No. 4497 at paragraph 16 per G.B. Morawetz J.

The “personal feelings” of the party represented by the solicitor whose removal from the record is sought “are only one element in the application of an objective standard”: see Everingham v. Ontario, supra, at p. 126.

The issue of conflict of interest should not be left in a state of uncertainty and I am justified in forcing this matter to a hearing at this point in order to bring about a smooth running focus hearing, trial, appeal, etc.
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Old 11-12-2016, 06:58 AM
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you should of dealt with it when you originally learned of the fact your ex had retained the lawyer. You didn't make a big stink of it then so you may be out of luck.

Besides really not fair to the ex as they have probably paid their lawyer a fair amount of money over the last year for representation.
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Old 11-12-2016, 02:13 PM
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Does a letter to the lawyer have any negative effects of a motion that some of you are warning against?
Quote:
The issue of conflict of interest should not be left in a state of uncertainty and I am justified in forcing this matter to a hearing at this point in order to bring about a smooth running focus hearing, trial, appeal, etc.
You want a lawyer who has represented your ex for a year, without an issue from you, to be out of the case because you spoke to their receptionist two years ago.

A number of people have essentially told you that this is a bad idea. You seem intent on pursuing it. This leads me to conclude:
1 - you want to fight with your ex/her lawyer, and the reason for the fight is not particularly important.
2 - you are desperate to get the case adjourned or delayed. You believe this may be your ticket to do that.

The drawback to bringing this to a motion is the following:
1 - you come across as unreasonable at worst, incoherent at best. Why is this only an issue now? Why was this not dealt with earlier? Saying "my lawyer did nothing" is not a reason that will assist you.
2 - your ex's lawyer will beat you over the head with this issue and that will taint your arguments for the rest of the motion. You are letting them establish that you are a crank. Why would anyone listen to a crank?

There is something that you have not said (and therefore I conclude you do not believe): that your ex's lawyer actually has anything of value about your case. If you told the receptionist things that are now easily gleaned from the court record it does not prejudice your case.

In reading only your side of the story on this issue, you are coming across badly. How much worse it can be if your ex throws her two cents in should be apparent to you.
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  #19 (permalink)  
Old 11-12-2016, 08:05 PM
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Default Conflict of interest

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Originally Posted by OrleansLawyer View Post
You want a lawyer who has represented your ex for a year, without an issue from you, to be out of the case because you spoke to their receptionist two years ago.

A number of people have essentially told you that this is a bad idea. You seem intent on pursuing it. This leads me to conclude:
1 - you want to fight with your ex/her lawyer, and the reason for the fight is not particularly important.
2 - you are desperate to get the case adjourned or delayed. You believe this may be your ticket to do that.

The drawback to bringing this to a motion is the following:
1 - you come across as unreasonable at worst, incoherent at best. Why is this only an issue now? Why was this not dealt with earlier? Saying "my lawyer did nothing" is not a reason that will assist you.
2 - your ex's lawyer will beat you over the head with this issue and that will taint your arguments for the rest of the motion. You are letting them establish that you are a crank. Why would anyone listen to a crank?

There is something that you have not said (and therefore I conclude you do not believe): that your ex's lawyer actually has anything of value about your case. If you told the receptionist things that are now easily gleaned from the court record it does not prejudice your case.

In reading only your side of the story on this issue, you are coming across badly. How much worse it can be if your ex throws her two cents in should be apparent to you.


You do make a good point that some of the things I would have shared would be in the settlement conference briefs It was too long ago and Incant remember what I would have said, who knows, maybe I said something that will be brought up just before trial ?

My lawyer was ordered off record and so I don't think it would be unreasonable for me to say the lawyer didn't follow or ignored my instruction - there was a breakdown in the relationship after all.

You do also make a good point that the motion may come off as an unreasonable position.

My question remains unanswered. Although I haven't brought a motion to get the lawyer off record, can my letter that I sent advising of the conflict be used against me in any way? I suppose I'm letting the lawyer know if he conflict of interest. If she feels there's a conflict of interest then she has a duty to remove herself? I did ask for a reply on my letter by next week so hopefully she's answer back with something? Maybe a bluff ?


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  #20 (permalink)  
Old 11-13-2016, 09:35 AM
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My lawyer was ordered off record
Was this not the result of a motion the lawyer brought themselves?

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can my letter that I sent advising of the conflict be used against me in any way?
It depends what it says. If I were your ex, however, I would use it to show how adversarial and unreasonable you are and therefore your ex should have sole custody.

Quote:
If she feels there's a conflict of interest then she has a duty to remove herself?
Which would have been done a year ago. Since the lawyer has acted for the past year she must not believe there to be any conflict.
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