Conflicted Counsel: Acting as the source of a Deponent's Knowledge,
Information, and Belief.
Jody W . Iczkovitz and Nazanin Aleyaseen
This publication first appeared in Vol. 16, No. 1 of the October 2007 OBA Civil
Litigation Section.
In interlocutory motions practice, what comfort can counsel with carriage of an
action take in informing the deponent of an affidavit of a fact in the litigation? The
practice is widespread and passed on from one generation of lawyers to another,
without a second thought. If you have never considered that the information you
give the court through an intermediary may result in an order of disqualification,
read the recent unreported decision of Mabott v. Greenwood. 1
In Mabbot, a motion was brought to compel answers to undertakings and to obtain
security for costs. After dismissing the motion for security, the Court dealt with
costs by receiving from the respondent's counsel an affidavit from an associate at
her firm. The affidavit made personal allegations against the student appearing for
the moving party. The assertions against the student were based on information
provided to the affiant by the respondent's counsel. Based on the allegations
contained in this affidavit, the Master awarded costs against the moving
party/defendant for alleged wrongdoing of the student.
The responding party appealed the decision. On appeal, the Court set aside the
costs award and ruled that the a gross injustice was perpetrated since the Master
was not alive to the issue that the affidavit of the responding party contravened the
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1
Unreported; Court File No. 03-CV-259231CM1, heard November 16, 2006, rev’d July 6, 2007.
principle that a lawyer as an officer of the court cannot advocate on his/her client's
behalf and also become a witness in the proceeding.
The Mabbot decision is significant because it illustrates how the courts are
increasingly scrutinizing a practice which attempts to circumvent the code of
professional conduct 2 and the law when counsel acts, not as the deponent for an
affidavit, but as the source of the information relied upon by the deponent. In fact,
the practice has become so prevalent that often the courts are not "alive to the
issue" and the case law remains uncertain.
The Canadian Bar Association Code of Professional Conduct, Chapter IX,
Commentary 5 provides:
The lawyer who appears as an advocate should not submit the lawyer's own
affidavit to or testify before a tribunal save as permitted by local rule or practice, or
as to purely formal or uncontroverted matters. This also applies to the lawyer's
partners and associates; generally speaking, they should not testify in such
proceedings except as to merely formal matters. The lawyer should not express
personal opinions or belief, or assert as fact anything that is properly subject to
legal proof, cross-examination or challenge. The lawyer must not in effect become
an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a
necessary witness should testify and entrust the conduct of the case to someone
else. Similarly, the lawyer who was a witness in the proceedings should not appear
as advocate in any appeal from the decision in those proceedings. There are no
restrictions upon the advocate's right to cross-examine another lawyer, and the
lawyer who does appear as a witness should not expect to receive special
treatment by reason of professional status.
Similarly, Rule 4.02(1) of the Law Society of Upper Canada's Rules of Professional
Conduct provides:
Subject to any contrary provisions of the law or discretion of the tribunal before
which a lawyer is appearing, a lawyer who appears as advocate shall not submit
his or her own affidavit to the tribunal.
2
Lawyers must be cognizant that while not law, and not binding on a Court, The Rules of
Professional Conduct are persuasive as an important statement of public policy. Mac Donald Estate
v. Martin, [1990] 3 S.C.R. 1235 at para. 18 (S.C.C.).
2
The Ontario Court of Appeal held, in Imperial Oil Ltd. v. Grabarchuk, [1974] O.J.
No. 1911 , that it was improper for the deponent of an affidavit to act as counsel
and rely upon that affidavit.
Far too often, affidavits from solicitors, or other persons in the employ of the law
firm, are tendered in contentious proceedings. This is an unacceptable practice.
The best evidence is from a deponent with actual knowledge, usually the client.
[emphasis added]
Despite the accepted and logical extension of the principle in Imperial Oil, supra, to
counsel who is not the affiant but the source of the information relied upon by them
with respect to a key factual matter, this unacceptable practice has become
honoured more in the breach than in the observance.
In Planned Insurance Portfolios Co. Ltd. et al. v. Crown Life Insurance Co.
[1989] O.J. No. 262, the Ontario High Court of Justice held that while the Canadian
Bar Association, Code of Professional Conduct, expressly prohibits the lawyer's
partners and associates from becoming witnesses, it noted that the Ontario Code
deliberately deleted the reference to the lawyer's partners and associates. The
Court stated:
All counsel acknowledge that the local practice in Ontario is that lawyers frequently
appear on motions where their partners have filed affidavits even where the
matters are extremely controversial and where there has been long and contentious
cross-examination on the affidavits.
Similarly, in Corporation of the Township of Essa et al. v. Guergis et al. [1993]
O.J. No. 2581 the Ontario Divisional Court held that while the rules and
commentary of the Code of Professional Conduct adopted by the Canadian Bar
Association prohibit the use by counsel of an affidavit of his partners or associates;
the Professional Conduct Handbook of the Law Society of the Upper Canada
(LSUC rules) do not prohibit the conduct and that Courts should be reluctant to
adopt the CBA Code in preference to the LSUC rules in such situations. The Court
stated:
I do not accept the argument that when a lawyer is compelled to testify against the
"other" side in a lawsuit the lawyer's firm must always be prevented from acting in
the lawsuit. There are a variety of scenarios which might develop at, or during,
trial. The possible conflict as discussed in the Kitzerman decision, supra, should
not automatically result in a law firm's removal. In the course of litigation an honest
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witness is often compelled to give evidence which will assist a party that witness
feels is "opposite." I do not agree that such a possible conflict requires removal in
all cases. There may be some where it does. I am not persuaded that decision
should be made at this pre-trial stage of proceedings in this case.
The Divisional Court has also articulated the following factors to be considered in a
situation where a complaint is about made about affidavits being filed by members
or employees of the law firm conducting the litigation:
a)
b)
c)
d)
e)
the state of proceedings;
the likelihood that the witness will be called;
the good faith (or otherwise) of the party making the application;
the significance of the evidence to be led;
the impact of removing counsel on the party's right to be represented by
counsel of choice;
f) whether trial is by judge or jury;
g) the likelihood of a real conflict arising or that the evidence will be "tainted";
h) who will call the witness if, for example there is a probability counsel will be
in a position to cross-examine a favourable witness;
i) the connection or relationship between counsel, the prospective witness and
the parties involved in the litigation.
Therefore the prohibition against the use by counsel of an affidavit of his partners
or associates as articulated in professional codes of conduct has not been
consistently upheld in Ontario. Some decisions acknowledge this practice while
others, as in Mabbot, expressly forbid it; this has led to uncertainty in the
profession, and cries out for more jurisprudence in this area.
In maintaining the distinction between counsel and witness, lawyers must be aware
of impact of these subtle but important practice directives. Lawyers must resist the
urge to cross the line between advocate and partisanship. In the right case, an illadvised comment in an affidavit sworn on information and belief may jeopardize the
right to appear for one’s client at the hearing.
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