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Lawyer-Mediator’s Firm Conflicted-Out of Representing Employee

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The law firm of a lawyer who assisted a hospital in “evaluating, mediating and resolving workplace conflicts between employees including allegations of harassment and workplace violence” has been ordered removed as lawyers of record for an employee who was suing the hospital.

The lawyer/mediator had met with various hospital employees including staff members, the hospital’s “Safe Workplace Advocate”, the CEO and various other senior hospital staff.

A few months later, a hospital employee started a lawsuit against the hospital and several representatives of the hospital, in respect of the termination of her employment.  The lawsuit apparently touched on some matters that the lawyer had dealt with in her role “evaluating, mediating and resolving” the workplace conflicts.  The lawyer/mediator was not involved in representing the employee.  She eventually left the firm.  The court found that the lawyer/mediator had at all times acted with integrity and professionalism.

The court noted that while the evaluation, mediation and resolution work of the lawyer/mediator had not perhaps been “the traditional work of a lawyer”, the firm was still in conflict.  The court was concerned with distinguishing between a law firm’s obligations to “different categories of existing clients” based on the type of work done by the law firm.  The lawyer/mediator had received confidential information from employees and management of the hospital, which the law firm could use against the hospital in representing the employee.  The court also noted that there was a “real risk in a highly publicized wrongful dismissal action, like this one” that names a hospital executive with whom the lawyer/mediator worked closely, that the law firm’s representation of both the hospital (by the lawyer/mediator) and the employee (by another lawyer in the firm) would be compromised. 

Interestingly, the court put the law firm on notice that the court was considering ordering costs against the firm, and invited the law firm’s submissions on that point.

Spirou v. Chant, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc52/2012onsc52.html