November 16, 2018
Chamberland, Savard, Marcotte
Appeal from a judgment of the Superior Court granting an application to disqualify a law firm. Allowed.
The application was based on the fact that the lawyer who represented the respondent in his divorce proceeding against the appellant joined the law firm representing the appellant.
The trial judge found that sufficient measures had been taken to prevent the respondent’s lawyer (Mtre Fleury) from having access to the appellant’s file, but that no measure whatever had been taken to prevent her from sharing confidential information about the respondent that she had in her possession with her new colleagues at Leilani Piette Avocate inc.
The judge erred in assessing the evidence on the measures taken by Mtre Fleury and Mtre Piette to counter the risk that the former would share confidential information about her former client with her new colleagues.
The evidence was adduced in the form of sworn statements, without either lawyer having been cross-examined. The evidence was undisputed and the judge stated that he did not doubt the sincerity of Mtre Fleury’s statements or undertakings of confidentiality.
Mtre Piette met with the appellant to inform her of the measures in place (namely, Chinese wall and cones of silence) to ensure that no information concerning her case would circulate between Mtre Fleury, the other firm members, and herself.
Furthermore, Mtre Piette held a meeting with the entire staff, before Mtre Fleury arrived at the firm, to discuss the measures put in place to prevent any conflict of interest or breach of professional secrecy. Because of that meeting, this case is distinguished from Boissonneault c. Lessard (C.A., 1998-04-16), SOQUIJ AZ‑98011393, J.E. 98-981, where the Court noted that the letter describing the steps taken to limit access to information on computer media had not been distributed to the entire staff. Here, every staff member was informed of the measures taken as the entire staff’s participation was essential to their effectiveness.
In MacDonald Estate v. Martin (S.C. Can., 1990-05-10), SOQUIJ AZ-91111018, J.E. 91-85,  3 S.C.R. 1235, the Supreme Court referred to “reasonable measures”. The measures put in place in this matter were sufficient. Any requirement on top of what had already been implemented would have been unrealistic, with the risk that the appellant might be placed in an extremely difficult situation, without any valid reason. Not to mention the consequences that would surely have on the mobility of lawyers within the profession in the judicial district at issue and elsewhere.
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