A lawyer is warning that solicitor-client privilege may be threatened by a master’s decision that barred him from representing his own firm in a dispute over a wrongful dismissal claim.
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A lawyer is warning that solicitor-client privilege may be threatened by a master’s decision that barred him from representing his own firm in a dispute over a wrongful dismissal claim.
In Teixeira v. Hamburg Olson LPC, Master Priti Sugunasiri, of the Ontario Superior Court, removed Toronto lawyer Samuel Kazen from representing Hamburg Olson Law PC — a practice purchased by his own firm in 2017 — against a wrongful dismissal claim brought by a law clerk, Nilton Teixeira.
Sugunasiri found the lawyer was too closely involved in the litigation, as he had “entered the fray as an effected participant” and could not be an impartial advocate.
The master also refused a cross motion brought by Kazen to strike certain exhibits that he said were subject to solicitor-client privilege. Sugunasiri determined that the defendant had waived privilege in a response to information tendered by the plaintiff, in which HOLPC had divulged that Kazen had retained the firm representing Teixeira for a one-time consultation in 2010.
Kazen says the decision means that if a lawyer violates his client’s confidentiality by publishing privileged information in a motion record, the client is not permitted to object to it in a responding motion record or else the client has retroactively waived the very privilege that he is asserting.
He says the ruling renders solicitor-client privilege meaningless.
“How on earth is anyone supposed to assert that his confidentiality was violated if he is not allowed to refer to the violation in his materials?” he says.
“If the decision is not overruled, it means no client is safe to discuss anything with his or her lawyer.”
Teixeira brought his claim after his employment ended with HOLPC in 2017, as Kazen’s firm, Kazen Law PC, was set to buy the practice. Teixeira claimed he was terminated after he rejected offers of employment from Kazen, one of which offered a salary at 20-per-cent lower than what he had been paid previously. But Krazen contended that the law clerk resigned.
After he brought his claim, Teixeira filed a motion requesting Kazen be removed as counsel for HOLPC, arguing he could be a likely witness, as he was involved in the employment negotiations that took place.
Sugunasiri found that Kazen’s role as a potential witness did not disqualify him from acting as counsel alone.
But when that potential role was coupled with Kazen’s “demonstrated and understandable attachment” to the case, as the head of HOLPC, it disqualified him, the master said.
“In my view, a fair-minded and reasonably informed member of the public would conclude that Mr. Kazen is too close to this litigation, and should not act as counsel of record,” Sugunasiri wrote.
Kazen brought a cross motion requesting he be allowed to act for HOLPC as its sole officer and director.
Sugunasiri, however, dismissed the cross motion and determined that Kazen could not “take off his lawyer hat and act as an agent.”
The master added that to do so “would defeat the court’s concern about Mr. Kazen’s involvement as HOLPC’s representative.”
Kazen says it is troubling that he, as the sole shareholder, officer and director of HOLPC, cannot defend himself in court.
He adds that this is contrary to the rulings of higher courts and that the master’s decision draws an arbitrary distinction between a lawyer representing themselves and representing their one-person corporation.
Stephen Wolpert, who is representing Teixeira in the matter, says he was happy with the master’s decision to remove Kazen as the lawyer of record.
“We were also pleased to see the master’s recognition that Mr. Kazen was too close to this case to act as either lawyer of record or as agent for the corporate defendant,” says Wolpert, who is an employment litigator with Whitten & Lublin PC.
“In doing so, the master highlighted the importance to our system of lawyers who act with objectivity and detachment.”
Lawyer Simon Chester, who was not involved in the matter, says it is rare for a lawyer to find themselves the defendant, witness and counsel.
He says the main takeaway from the decision is that lawyers need to be careful when acting for themselves and that the court is going to look very carefully at how lawyers behave as impartial advocates.
“It’s a reminder to all of us that we should be careful about the hats that we wear,” says Chester, who is counsel at the Toronto office of Gowling WLG (Canada) LLP and focuses on conflicts and regulatory matters.
Kazen has served a notice of appeal requesting that Sugunasiri’s decision be set aside.
The lawyer says he also intends to reach out to the Information and Privacy Commissioner of Ontario to urge him to intervene in what he says could be a disastrous precedent for the integrity of the legal profession.
