This Week in Legal Ethics – New Professional Conduct Ruling

August 3, 2016

By Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.

Date:  June 16, 2016
Cite as:  2016 SKLSPC 4
Code Chapter:  2.04
Code Heading:  Conflicts
Classification:  Duty to Avoid Conflicts of Interest – Rule 2.04(1)
Practice Area:  Wills and Estates; Estate Planning

Facts:

From the mid-1960s to the mid-1980s, Client A, the father, farmed land owned by Lawyer X, a partner of Law Firm XYZ. Lawyer X also provided legal advice to Client A and his wife, Client B.  Lawyer X completed Wills and Powers of Attorney for both parties, in late 1995. The complainant and Client C are siblings and named the joint executors of Client A’s will. Client C is the Power of Attorney for Client B.

In April, 2013, Client A was diagnosed with dementia. In December, 2013, Client C took Client A to see Lawyer X and had property taken out of Client A’s will and transferred to Client C and the Complainant. The Complainant understood that these transfer were done for the purpose of avoiding probate fees and not that they were being removed from Client A’s will. On February 5, 2014, Lawyer X reports to Client C that the land transfers have occurred and that the matter is now complete.

In June, 2014, Client A passes away. Client C and the Complainant are appointed joint executors of his estate, but have a dispute regarding the estate administration.

In April, 2015, Lawyer X retires and Lawyer Z assumes carriage of these files.  Shortly after, the Complainant retains Lawyer J, who writes Client C outlining certain concerns with his actions and requesting certain documents. Lawyer Z responds to Lawyer J advising that his office acts for Client C and that they were assembling the documents required to respond and that would likely need more time to provide the documents.

On May 8, 2015, Lawyer J requests an update on the status and inquires whether there is a conflict of interest in acting for Client C, as Law Firm XYZ had previously acted for Client A.

On May 22, 2015, Lawyer J seeks a further update and indicates that if they do not reply by May 29, 2015, they would be contacting the Public Trustee to advise of Client C’s non-compliance, and would consider an application to the Court of Queen’s Bench to compel disclosure, and to remove him as executor for Client A and POA for Client B.

On June 19, 2015, having received no response, Lawyer J writes the Public Trustee to express their concern that Client C is acting in a manner inconsistent with his fiduciary obligations to their mother in his capacity as Power of Attorney by failing to provide any information or an accounting to the Complainant; that Lawyer Z had failed to address his concern that his office was in a conflict of interest; and seeking the assistance of the Public Guardian Trustee of Saskatchewan in this regard.

On June 23, 2015, Lawyer Z provides various documents reporting to be a personal property attorney account for Client B.  On June 26, 2015, Lawyer Z clarifies his position on the issues raised in the letter to the Public Trustee and indicates that, in his opinion, there is no conflict of interest.

On September 14, 2015, Lawyer J raises concerns with Lawyer Z about the material provided and requesting further information. On October 16, 2015, Lawyer J writes Lawyer Z following up on the status of the matter.

On October 30, 2015, Lawyer Z responds and provides further information. Lawyer Z indicates that Client C has not satisfies the requirements of s.15 of The Powers of Attorney Act.

At no point has Lawyer Z or Law Firm XYZ acted for Client C in his capacity as personal representative of Client A’s estates, nor have they acted for the Complainant. There have been no applications to the court relating to a potential conflict of interest.

Decision:

The Ethics Committee considered whether Lawyer Z is in a conflict of interest. The Committee determined that, based on the material provided, they were unable to find any conflict of interest at this point. There is no conflict, simply by virtue that Lawyer X acted for the father previously and now Lawyer Z acts for the son.

There may be a potential for conflict in the future should a member of Law Firm XYZ need to be called as a witness as part of this dispute; however, it is premature to determine the possibility of a future conflict at this time.