January 9, 2024
If you are involved in a corporate dispute, such as a fight between shareholders, consider a sealing order to protect sensitive corporate information.
THE ISSUE
As we have written before, the general principle is that court proceedings, including filings, ought to be public and available for review.
THE CASE
Minz v. F.P.L. Investments Limited is an example of this exception to the general rule. It also has interesting things to say about the removal of a lawyer for one of the parties.
In Minz, one of the warring shareholders hired as their lawyer, a counsel who had previously been hired by the corporation to represent it on an entirely separate lease dispute which was still ongoing. The opposing party in the shareholder dispute, relying on the so-called “bright line rule” that a lawyer may not at the same time act for and against a client, sought to have the lawyer removed.
The Court looked at the retainers in question, and particularly a clause which explicitly allowed the law firm to accept a conflicting matter in certain circumstances. The judge found as a fact that this clause applied, and in any event, the two matters were so dissimilar that there was no conflict.
The sealing order is the mechanism to remove material from public access. The difficulty was that the parties had to put facts in the motion material which others could use against them in other matters (such as the rent dispute). The information in question would normally be subject to solicitor client privilege. That privilege is also an important principle, so a balancing act was required. The judge determined that portions of the record could be sealed while leaving public enough facts that the decision on the removal motion could be understood.
TAKEAWAYS
- Solicitor- client privilege is an important value in our legal system
- The open court principle is also important.
- Where they conflict, a balancing act is required.
- The “bright line rule” does not always prevent a lawyer acting against a client in an unrelated matter.
- The rule is still the rule, but there are exceptions- the right to a lawyer of your choice is an important value.
HOW WEILERS LLP CAN HELP YOU
The litigation team at Weilers LLP have had significant specific experience in arguing issues of privilege before the courts. Our in-depth experience in this area may give you an advantage if privilege is going to be an important issue in your case. It also demonstrates the depth and range of expertise available at Weilers LLP. We also encourage our clients to approach resolving disputes using common sense. If this is the sort of approach you value, we may be the right lawyers for you.