The Client He Had Not Met

A conflict of interest has led to a 45-day suspension imposed by the Upper Canada Law Society Tribunal Hearing Division

The Lawyer, Robert Dinnen, was retained to prepare a will for a 94-year-old client. His office prepared the will, which he reviewed, but he did not meet with the client at any time during the will preparation process. Then, after the client passed away, he represented the estate trustee when the will was contested, but did not communicate directly with her, meet with her or obtain instructions as he should have done. What is more, he acted in a conflict of interest. The will was contested on the basis that the testator did not have competence or testamentary capacity when she signed it. His office had prepared the will and his staff had witnessed its signature. His firm’s work was at issue and members of his staff were likely witnesses. Despite this having been brought to his attention by opposing counsel and by judges, he continued to act, and did not appropriately address the issue with his client.

Mr. Dinnen admits that he engaged in professional misconduct by failing to serve both clients to the standard of a competent lawyer, by failing to assume complete responsibility for his practice and supervise his staff, and by acting in a conflict of interest.

The parties agreed on the facts, and to a joint submission that Mr. Dinnen be suspended for 45 days, that he take three additional hours of professional development on conflicts of interest, and that he pay costs of $15,000 to the Law Society. I found at the hearing that this was reasonable, and made the order requested.

The details

Shortly after Client A died in April 2014, Mr. Dinnen was retained by the estate trustee, Client B. At about the same time, a lawyer representing a beneficiary under the will wrote to Mr. Dinnen, raising the issue of whether the client had testamentary capacity when she made the will. The validity of the will became the subject of litigation.

Mr. Dinnen did not keep Client B informed or obtain her instructions on specific steps as the issues proceeded. In particular, he:

•           did not provide her with copies of most letters between him and opposing counsel. Indeed, he specifically asked his assistant not to copy opposing counsel’s letters to Client B.

•           did not meet with her or speak with her for months.

•           asked her to sign three affidavits without explaining to her what she was signing.

•           did not meet or speak with Client B to discuss or obtain instructions on an offer to settle from opposing counsel. He sent her a letter with the offer that advised her to reject it “for reasons that are obvious.”

The problem surfaced

Opposing counsel brought a motion to remove Mr. Dinnen from the record, which was heard on February 26, 2015. Client B saw the extensive correspondence between the parties only when she was served with the motion record shortly before the hearing. She met Mr. Dinnen for the first time at the hearing.

Justice Gordon granted the motion stating

There is a significant likelihood of a real conflict arising.  Counsel for the estate is propounding a Will prepared by his office.  The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law.  Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.

Although counsel for the estate did not undertake to call Ms. McKinnon and Ms. Pietrasik as witnesses, it seems most likely that he will do so.  If he does not, counsel for the moving party has indicated that he will call them, and perhaps even Mr. Dinnen as well.

The proposed witnesses are long term and presumably trusted employees of counsel. They work together every day.  Although it may not be the type of relationship that would exclude counsel from acting in every case in which they might be involved, when the subject matter of their testimony is the very service provided by the law firm, the nature of the relationship is of added significance.

(Mike Frisch)