Canadian Lawyer

10 J u l y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m I f lawyers who work in associa- tion "hold themselves out as law firms," they're subject to the same stringent conflict and confidentiality protocols expected of law firms, ruled Ontario Superior Court Justice David Stinson last month. He set aside a 2013 master's decision that rejected a pre- sumption that lawyers who work in association with each other are sharing confidential client information. In an employment law case, Jajj v. 100337 Canada, the defendants sought to remove lawyer Kenneth Alexander of the Davenport Law Group as the plain- tiff 's counsel due to conflict-of-interest concerns. The defendants had previously consulted with a lawyer who works in association with Alexander. The defen- dants argued for a presumption the law- yer, Kevin Fox, had shared information with Alexander. "In my view, where law- yers who practise 'in association' never- theless hold themselves out to the public and to their clients as a law firm, they should be treated as such and be held to the same conflict requirements and professional obligations as a law firm," wrote Stinson. The lawyers used the same telephone and fax numbers, company letterhead, and e-mail domain, all of which gives outsiders the impression the Davenport Law Group is a law firm, the judge found. When Master Benjamin Glustein found in his decision last year that the two lawyers hadn't discussed the case, he simply took Fox's word for it, according to Stinson. The judge added Fox's evi- dence didn't provide "insight" into the workings of the office space he shares with Alexander and how the lawyers prevent inadvertent communication of client files. "Despite having held himself out (as has Mr. Alexander) as a member of DLG, he now assures the court (after the fact) that he will not share any con- fidences with Mr. Alexander. For clients such as the defendant, having entrust- ed its confidences to another lawyer at DLG, that is cold comfort." Alexander told Law Times the move to remove him was simply a question of "tactical advantage." He said he's rep- resenting the same client in a separate action against the same defendants and in that case, the defendants haven't attempted to remove him. Stinson failed to identity exactly what confidences he and Fox could have shared, he says, not- ing the theoretical basis for the decision to remove him. Although the Davenport Law Group isn't a law firm, other practices that call themselves law groups do function as law firms. Frank Addario, of the Addario Law Group, says his practice is "a strict firm." It's important lawyers working in associa- tion erect "substantial barriers" to confi- dentiality breaches and have evidence to back up their assertions, says Addario. "It seems fair that people should take up the opportunity to create the evidentiary basis for establishing that they're not as things appear. If it looks on the appearance of it that there's a single shared network of law- yers but the reality is different, it's not that difficult to put that in front of the courts." To Stinson, although it's "desirable" to allow lawyers to be mobile and work in association, putting up the appearance of a law firm could be a tactic used by sole practitioners to attract clients. Stinson also suggested lawyers who work in associa- tion should put in place the same conflict search system as law firms and implement measures to ensure confidentiality. But according to Alexander, that prop- osition is "dangerous" as lawyers who work in association would have to reveal their clients to each other in order to perform a conflict search. Still, the Davenport Law Group will make it "a little bit more explic- it" that it's not a law firm, says Alexander. — YAMrI tADDese yamri.taddese@thomsonreuters.com RegIonal wRap-up lawyer, cowboy, musher D uring this month's Stampede, a lot of Calgary's legal com- munity gets dressed up like cowboys and cowgirls and parties as if every night is Saturday night. But among all the partyers and pretend- ers there is at least one lawyer who can claim to be a real cowboy. Though, in modest cowboy fashion, Russ Gregory is reluctant to adopt the label. During Stampede, law firms com- pete with energy companies and other corporate big swingers in hosting extravagant gatherings to entertain cli- ents and would-be clients. Meanwhile, Gregory is spending most mornings and evenings on his ranch cleaning stables and feed- ing horses. The 54-year-old native-born Calgarian is a lawyer, rancher, horseman, and an Russ Gregory splits his practice between Calgary and his Saskatchewan ranch. West Law firm standards appLied to associations

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