conflict of interest

[daver32]

We have just ended a 10 year CL relationship. We had still lived together for a year until the house was sold.

She acquired a lawyer for the sale of the house. So he was representing the two of use in the sale of the house which is in both our names.

When I went with her to sign the final house documents after everything was signed he presents me with a proposal letter for a separation agreement. So while he was representing the two of us with the sale of the house he was also representing her with drafting a separation agreement.

At the time my ex needed some release of some funds from the sale of the house to pay for bills. I agreed as the amount was going to be given to both of us. I did not sign anything about that. The lawyer says he would prepare the documents required to be signed for the release of the funds. Later I thought I should not make things easier for her and I should decide against the release of funds. I called her lawyer up and he says the funds were released to her as we had a verbal agreement. I have yet picked up my funds. He also claims the funds will be withheld until the agreement is made. If I pick up the cashier check he wants me to sign a receipt for the check and a document saying that the funds will be held by him until the separation agreement is final. She was probably signed this already.

Is this a conflict of interest as this lawyer was representing the two of us with the sale of the house while representing her against me with regards to the separation agreement? At the same time he is withholding the funds from being equally distributed to us even though I did not sign a document saying he should be doing this.

[logicalvelocity]

Daver32,

You raise some good points in your question. See the similar situation in the matter of Serniak v. Teitel, 2003 CanLII 42753 (ON S.C.) where the court dealt with the issue if breach of fiduciary duty. In the result the court held that the solitor was in breach. At paragraph 12 of the Judgement:

http://www.canlii.org/en/on/onsc/doc...nlii42753.html


and Appeal ramifications can be found here:

http://www.canlii.org/en/on/onca/doc...anlii9130.html

lv