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

Forthcoming, Queen's Law Journal

57 Pages Posted: 14 Jun 2019 Last revised: 24 Jul 2019

See all articles by Brooke MacKenzie

Brooke MacKenzie

University of Toronto, Faculty of Law; MacKenzie Barristers P.C.

Date Written: May 23, 2019

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

Suggested Citation

MacKenzie, Brooke, Explaining Disqualification: An Empirical Review of Motions for the Removal of Counsel (May 23, 2019). Forthcoming, Queen's Law Journal. Available at SSRN: https://ssrn.com/abstract=3394937 or http://dx.doi.org/10.2139/ssrn.3394937

Brooke MacKenzie (Contact Author)

University of Toronto, Faculty of Law ( email )

Toronto
Canada

MacKenzie Barristers P.C. ( email )

Richmond Adelaide Centre
120 Adelaide St. W. Suite 2100
Toronto, Ontario M5H 1T1
Canada

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