By EDITORS May 13, 2017
Ironically, when engaging with a law firm, one of the first things that the firm does is check for a conflict of interest. However, firms commonly represent both parties in ongoing cases, usually when the parties are mutually attempting to come to a reasonable resolution on an issue without going to court. This loophole, that allows for mutually agreeable resolutions, seems to be interpreted very liberally.
In my case, I had retained Michael Maddalena of Burchell McDougall, a Halifax NS Law Firm, as my corporate counsel for my small consulting company. I had known Michael socially and had been acquainted with him, his wife and family for years before building what I believed to be a trusted relationship with Michael as my legal counsel.
Several years later, my ex-wife and I were engaged in a civil dispute. She was represented by Judy Schoen who, at the time, worked at the firm Crowe Dillon Robinson. During the proceedings she left Crowe Dillin Robinson and took a position at Burchell McDougall. Oh, and Ms. Schoen continued to represent my ex-wife.
The gist of this was that the law firm representing my ex wife in what had become a very contentious civil action had also represented me corporately. I ask of the reader, does this seem like a conflict of interest? I approached Michael Maddalena about the matter, as I was uncomfortable with the situation and erroneously believed that if I was a past or present client of Burchell McDougall it precluded the law firm from representing my ex-wife. Why else do law firms perform the conflict of interest check when you initially engage them?
I was informed that firms in Nova Scotia do this all the time and establish a “Chinese Wall” between cases in such scenarios. What the heck is a Chinese Wall in a small law firm? I still don’t know what that means or what controls and checks were in place to ensure the Burchell McDougall family of lawyers and administrative staff keep a separation between cases and case files stored in a common archive. This Chinese Wall concept in business is typically a formal agreement to share some, but not all information between parties on each side of the wall. My trust in my legal counsel was shaken so I approached the Barristers Association. Sure enough, they confirmed the practice to be common and left up to the individual law firm's discretion.
Fast forward a few years and my ex-wife, Angela Power, takes a job as an assistant to Judy Schoen, at the same said law firm. The dispute between Angela Power and I was ongoing at the time and Ms. Power, by her own admission, was working for Ms. Schoen to pay off a debt.
The situation is as follows:
My ex-wife works for Judy Schoen.
Judy Schoen works at Burchell McDougall.
Burchell McDougall was prosecuting me in a number of civil actions that implicated me corporately.
Burchell McDougall had represented me corporately.
How comfortable would you be having the individual who has gone through an extreme effort to destroy and defame you, and her lawyer working for the firm that represented you?
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The Dictionary definition of Conflict of Interest seem pretty unambiguous:
Yet, in my experience, it seems that law firms in Nova Scotia are a bit fuzzy on the meaning of the conflict in their interests. Supported by the Barristers' Association, situations that appear to be conflict of interest to the outside world seem permissible and in the best interests of the lawyers and law firms that stand to profit from it.
Where do law firms draw the line on conflict of interest?
What does Conflict of Interest mean to a law firm?