Explaining Disqualification: An Empirical Review of Motions for the Removal of Counsel

Abstract

Since the Supreme Court of Canada's 1990 decision in Macdonald Estate v Martin, motions to disqualify opposing counsel from acting on a case have been a regular occurrence in litigation. Despite their frequency, however, the law respecting disqualifying conflicts of interest remains difficult for lawyers to understand and apply. Even when a conflict is identified, it is not well-settled when a court will order removal. This lingering uncertainty has important practical ramifications for lawyers in practice; for litigants who likely already feel disheartened with the legal system as a result of their former lawyer's apparent conflict; and for public confidence in the integrity of the administration of justice. This paper seeks to provide a better understanding of when and why counsel may be disqualified for acting in a conflict of interest, through a comprehensive empirical review of all motions for the disqualification of counsel since the Supreme Court's decision in Martin.

Keywords: conflicts of interest; practice of law; legal profession; disqualification; removal of counsel