On May 20th, the Nova Scotia Court of Appeal affirmed a 2007 decision on a made-for-the-textbooks fact scenario in which a judge held that two casual conversations between a lawyer, another lawyer and the other lawyer’s wife did not give rise to a solicitor-client relationship.
The facts involve a partner and his associate whose wife was contemplating leaving her employment as a real estate broker.
The associate first had a conversation with the partner that was held to be “brief,” and likely lasted for less than 20 minutes. The associate admitted that he sought “off the cuff” advice on the partner’s “two cents worth” and at the same time sought an opinion about the qualities of his wife’s potential new business partner. The conversation did touch upon legal matters, however, including the wife’s obligation to give notice.
The second conversation happened when the wife attended the office and she and her husband intercepted the partner when he was on his way out to lunch. The wife testified that she attended the office to seek legal advice from the partner, but also admitted that she had no intention of retaining him as counsel on her impending departure. The subject matter of the second conversation was the same as the first, and the partner testified that he was just lending support to his associate.
The left employment and her former employer sued. In the course of pursuing its claim, the employer contacted the partner, who spoke openly about his meeting with the wife and his now estranged associate. The partner said, “If they had listened to me there would likely have not been a lawsuit.” The wife (with others) sued for breach of solicitor-client privilege.
Mr. Justice Boudreau of the Nova Scotia Supreme Court dismissed the claim in April 2007. He said:
I am conscious of the fact that a retainer does not have to be perfected for solicitor-client privilege to arise, but it is necessary that the prospective client be at least that, and that the lawyer’s professional opinion he sought in his capacity as such (see Wigmore at p. 554). I find that even this minimal requirement has not been established in this case. Ms. Cushing has indicated that she was not a potential client of Mr. Hood (See Descôteaux). The plaintiffs have failed to establish that Ms. Cushing attended at the office of Mr. Cushing (regarding the second conversation) in order to obtain a consultation from Mr. Hood in his professional capacity. There was no meeting arranged with Mr. Hood and the casual conversation occurred purely by chance.
Ms. Cushing did not say to Mr. Hood that she was there to obtain his professional legal advice. Also, Mr. Hood did not indicate what may be legally required but he simply gave his common sense thoughts on what may be a proper or ethical way to conduct business in a small town like Yarmouth. As I said, in the final analysis, the plaintiffs have failed to prove that a solicitor-client relationship existed at the relevant times.
The Nova Scotia Court of Appeal upheld Boudreau J.’s decision in a brief award.
Cushing v. Hood, 2007 NSSC 97, affirmed 2008 NSCA 47.