Saturday, January 12, 2019

Every Brother 's Son

A conflict of interest in contentious family law litigation has drawn a reprimand from the Tribunal Hearing Division of the Upper Canada Law Society (David A. Wright)

The respondent Lawyer, Ronald Zaldin, practises family law. His twin brother, Donald Zaldin, is also a lawyer and was his employee, practising under his supervision. In 2013 and 2014, the Lawyer represented his nephew, Donald’s son, in family law proceedings.

The Lawyer admits that he engaged in professional misconduct by acting in a conflict of interest and by failing to treat the opposing party, opposing counsel and the Office of the Children’s Lawyer (OCL) honourably. He disclosed to the OCL the position taken by the opposing party in a closed mediation and deliberately failed to copy opposing counsel on an e-mail to the OCL. As a result, he was removed as counsel by Madam Justice Kiteley: See Zaldin v. Zaldin2014 ONSC 6504 (CanLII).

The misconduct

The litigation was high-conflict, and the parties could not agree on custody and access arrangements. In November 2013, following a consent order requesting its involvement, the OCL agreed to provide services to the parties. Around the same time, the parties participated in closed mediation. The mediation agreement provided that all information provided would be confidential.

On January 24, 2014, Sally Doulis, the OCL clinical investigator, phoned each of the parties’ counsel to introduce herself and arrange further discussions. When she phoned the Lawyer’s office, his brother Donald answered the telephone. Neither the Lawyer nor his assistant was available to speak with Ms. Doulis. His brother decided to speak to her about the case without the Lawyer’s knowledge or consent.

The Lawyer later told the Law Society that when he returned to the office and learned of the call, he asked his brother to give him details. The Lawyer said his brother told him only that Ms. Doulis said she was appointed to conduct the investigation and would contact the spouses directly. The Lawyer confirmed this version of the call at the time in a letter to Ms. Doulis and opposing counsel. However, it later became clear that there was much more to the call. In fact, Donald had spoken to Ms. Doulis about what had happened between the spouses since their separation.

 On April 2, 2014, Ms. Doulis had a meeting with the parties and their counsel in which she reviewed the contents of her written report and provided them copies. The Lawyer had some concerns with the access schedule it contained.

 On April 11, 2014, the Lawyer wrote to Ms. Doulis directly at 3:42 p.m., without copying counsel for the other side. That e-mail made reference to discussions that had happened in the closed mediation and attached a letter from opposing counsel to him that referenced the mediation. The Lawyer was explicit in the e‑mail that he intended that the information be kept from the other side:

For the record, I am NOT copying Ms. Israel with this letter in order not to make the central issue the mechanics of how the parties move forward with the substantive issue herein: the timely and cost-efficient resolution of the custody/access issues by way of a joint custody agreement (in the best interests of the children).

Instead, I will be requesting your formal Report and Recommendations at your earliest convenience) by a separate, stand-alone email, which will soon follow this email.

[emphasis in original]

At 3:47 the same day, the Lawyer sent a more limited e-mail that did copy opposing counsel, giving the impression to opposing counsel that the second e‑mail was the only one that had been sent.

The conflict

The close personal relationships between the Lawyer, his employee/brother and his nephew ran the risk of impairing his representation of the client. In fact, such impairment occurred when his brother became involved in discussions with the OCL, and when the Lawyer acted aggressively and dishonourably in the litigation.

Sanction

The parties jointly submitted that the penalty should be a reprimand. The Tribunal must accept a joint submission unless it is outside the reasonable range or would bring the professional discipline system into disrepute: Law Society of Upper Canada v. Cooper2009 ONLSAP 7 (CanLII). The parties worked very hard to reach a resolution they could agree on, during multiple pre-hearings. I agree this is a reasonable penalty in the circumstances.

This misconduct is clearly at the less serious end of the spectrum. In other cases, allegations of acting in a conflict of interest and/or disclosing information that should not be disclosed have led to a reprimand: see Law Society of Upper Canada v. Ghan2012 ONLSHP 199 (CanLII)Law Society of Upper Canada v. Guttman2012 ONLSHP 119 (CanLII); and Law Society of Upper Canada v. Anber2014 ONLSTH 143 (CanLII). The Lawyer has no discipline history, has admitted the misconduct and has shown remorse. This penalty will deter him from repeating the misconduct and also deter other lawyers from engaging in similar misconduct. It is clearly within the range of reasonableness.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/01/a-conflict-of-interest-in-contentious-family-law-litigation-has-drawn-a-reprimand-from-the-tribunal-hearing-division-of-the-u.html

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