Lawyer Shopping Not Enough to Create Conflict of Interest in Personal Injury Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing conflicts of interest when a lawyer sues a person who previously contacted their firm following a motor vehicle collision.
In last week’s case (Caballero v. O’Callaghan) the Defendant was the owner of a vehicle which was involved in a single vehicle collision.  The Plaintiff was a passenger in the vehicle and was injured.  Shortly after the collision the Defendant owner contacted several lawfirms including the firm that eventually was retained by the Plaintiff.
The Plaintiff ultimately sued both the owner and driver of the vehicle he was in.  A few years into the lawsuit the Defendant owner brought an application to dismiss the Plaintiff’s lawyer arguing he was acting in a conflict of interest.   Madam Justice Loo disagreed finding that while the Defendant did phone the Plaintiff’s lawfirm, he never spoke with the Plaintiff’s lawyer nor did he retain the firm.  In dismissing the application the Court provided the following reasons:



[36] The facts in this case fall within what is often referred to in these types of cases as a “shopping case”. Mr. Wells was looking or shopping for a lawyer and for legal advice. What he told Ms. D’Souza is most likely what he told the “numerous” lawyers he contacted on September 20, 2006.

[37] A reasonable person informed of all of the facts would not conclude there is a risk that Mr. Wells will be prejudiced by the information he provided to Ms. D’Souza or Slater Vecchio, or that anything unjust would arise.

[38] If I am wrong, there are other facts that I can take into account in deciding whether this application should succeed or whether Mr. Cantu should maintain his right to be represented by the counsel of his choice. Mr. Wells has known about this action since at least in or around October 20, 2008 when Quinlan Abrioux entered an appearance on his behalf. Yet he delayed almost two years before he first raised the issue of a conflict. Since December 2006 Slater Vecchio has done a significant amount of preparatory work for the trial which is set for ten days commencing February 6, 2012. Mr. Cantu selected Slater Vecchio as his counsel. As a result of the injuries he sustained in the accident, Mr. Cantu had to close his business, has been unable to find other employment, and is currently working with a vocation counsellor to consider his future employment options. He has either undergone or expects to undergo hip surgery with an expected long and painful recovery period. He is anxious to have the action resolved and move on with his life.

[39] However, apart from any delay argument, I conclude that the interests of justice do not require this Court to remove Slater Vecchio as lawyer for the plaintiff and the application is dismissed with costs.



bc injury law, Caballero v. O'Callaghan, conflict of interest, Madam Justice Loo

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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