Corporations’ right to counsel of their choice
A director has retained and worked closely with a lawyer on the corporation’s behalf in the past. Can that fact be used to disqualify the same lawyer from representing the corporation in legal proceedings against the now former director?
No, answers the Court of Appeal in Corporation de services des ingénieurs du Québec/Réseau IQ v. Indelicato, 2016 QCCA 1087.
In 2005, Mr. Indelicato was the president of Réseau IQ. He retained the services of Me Grenier, on behalf of Réseau IQ, to draft and negotiate an employment contract with its then Director General. In 2009, Réseau IQ hired Mr. Indelicato as its new Director General, without the involvement of Me Grenier or other legal counsel. Nonetheless, the employment contract signed by Mr. Indelicato drew heavily on the one drafted by Me Grenier in 2005.
Following his dismissal in 2012, Mr. Indelicato sued Réseau IQ for insufficient notice of termination of employment. Réseau IQ retained the services of Me Grenier’s firm to represent it in the proceedings.
Mr. Indelicato sought to disqualify Me Grenier from acting for Réseau IQ. He pleaded that he intended to testify about conversations he had with Me Grenier on the juridical effects of the 2005 contract, and, by extension, his own contract.
The first instance judge granted the Motion for Disqualification, holding that there was sufficient overlap between the pre-existing relationship between the two men and Me Grenier’s mandate in the file. According to the first instance judge, Me Grenier should be disqualified since he was privy to confidential communications and since he would be likely called to testify at the trial.
The Court of Appeal disagrees with this reasoning.
Justice Mainville, with the agreement of justice Forget, reminds the reader that the right to be represented by one’s counsel of choice should only be limited for compelling reasons. Here, finds the Court of Appeal, no such compelling reasons were presented.
Justice Mainville explains that the fact that Mr. Indelicato was Réseau IQ ‘s mandatary does not entail that Mr. Indelicato became Me Grenier’s client. The client was Réseau IQ, acting, as all corporations do, through its representative. That legal opinions were transmitted to Réseau IQ by the intermediary of Mr. Indelicato does nothing to alter the effects of professional secrecy in this case.
Because Mr. Indelicato was Réseau IQ’s mandatary, he was bound by a duty of confidentiality. However, this duty of confidentiality does not confer immunity from judicial disclosure.
On the other hand, professional secrecy, as protected by s. 9 of the Quebec Charter, does confer immunity from judicial disclosure. In matters of the professional secrecy of lawyers, the immunity from judicial disclosure extends not only to the lawyer but also to those who receive his or her opinions as the client’s mandatary, here, Mr. Indelicato.
Therefore, neither Me Grenier nor Mr. Indelicato could testify to the legal opinions provided by Me Grenier unless Réseau IQ waived professional secrecy. With no indication that such a waiver would be given, there were no compelling reasons to disqualify Me Grenier.
Justice Bélanger would also have dismissed the appeal, based on the fact that the integrity of the trial did not appear to be threatened by the debate as presented.
This decision serves as a useful illustration of the oft-repeated principle that the right to professional secrecy belongs to the client. This is true even when, as is the case here, the client is a corporation acting through a representative whose interests later diverge from its own.