Every day when I wake up I wonder what I should BLOG about. Fortunately, I live in the City of Windsor. There are so many stories from which to choose that I just cannot believe it. They are limitless.
Take the border file for instance, please. Okay, okay… enough of the Henny Youngman jokes. One would think after writing so much about the subject for so many years that I could not possibly say anything new.
If that’s what you think, dear reader, then you are wrong. I have given up trying to figure out what is going on with this file. There are so many twists and turns. I just go with the flow.
Seriously, I don’t have the imagination to make this stuff up. It seems that something new and bizarre takes place so often, something unexpected. I just sit back in amazement and awe and wonder. Is someone actually masterminding all of this stuff or is it completely and totally out of control? Are we all being played in some master scheme or are we like the ball in a pinball game?
Taken the latest shock as far as I am concerned:
- “Windsor is keeping Toronto environmental lawyer David Estrin as its legal expert on border issues, despite a lawsuit by the Ambassador Bridge's ownership claiming he and his law firm have a conflict of interest…
"Absolutely, he is working for us right now -- on all files," said Francis afterwards.”
I have to admit that I am surprised by that. After all, the US Court of Appeals stated:
- "There are some conflicts of interest to which a client may not consent. Thus, the district court was only partially correct when it stated “that a client may impliedly waive its consent to an attorney’s conflict of interest,” J.A. at 589 (Order at 6), because it ignored the question of whether Gowlings’s simultaneous and adverse representation of CenTra and Windsor was in fact a conflict to which CenTra could consent. We hold that there is a genuine issue of material fact as to whether Gowlings’s conflict of interest with regards to the Bridge Plan was one to which CenTra could consent...”
Moreover, the Court stated:
- “If the vague and general information that CenTra possessed regarding prior, different conflicts was enough, then the client would bear the burden of identifying and understanding the full scope of any conflict of interest. It is not the client, however, to whom the various codes of conduct have given this responsibility; “[t]he affirmative duty here rests not with [the clients] but with [the law firm] and its attorneys.”
Maybe I am missing the point but combined, these two statements suggest to me that there is a real question whether Gowlings should be acting for the City. Given what the Court of Appeals is saying, it may well be that Gowlings has a professional duty not to be acting for any of the parties. Accordingly, they should be resigning from acting as counsel for the City.
After all, the Trial Court stated:
- “Defendants do not dispute that they entered into a conflict of interest by representing Windsor and Plaintiffs with regards to various parts of the Bridge Plan and that any conflict check that Defendants undertook did not discover the adverse representations.”
Even Estrin stated:
- “Every firm tries its best, but sometimes the conflict screen breaks down," Estrin said.”
It was also said that:
- "The search did not reveal Estrin's representation of Windsor adverse to CTC because, when Estrin's general representation of Windsor on border crossing matters gradually turned adverse to CTC in 2003, he did not amend his initial conflict filing to add CTC as an adverse party."
The issue seems very simple to me. The firm has admitted that their conflicts system failed initially and that Estrin failed to change his initial filing. Accordingly, they did not pick up a conflict between the City and the Bridge Company. Whether this is negligence of their system or Estrin’s negligence in not amending his filing, it does not matter. The firm has admitted that there is a conflict.
The debate now is whether that conflict can be waived. The Court of Appeals has very much put in play whether or not the adverse relationship between the Bridge Company and the City would permit a waiver. It may be one of those instances that cannot be waived.
Given the fact that our Mayor IS a Lawyer, he ought to be concerned about this and whether or not Estrin and the firm can continue to act for the City. The point is why do we want to be involved in all of this.
It is not as easy as Eddie is trying to make it. He is positioning it so as not to accept blame if this falls apart since we may have wasted millions on legal fees:
- “this is a matter between Gowlings and Centra [Ambassador Bridge]."
Wrong. It is much more than that. The concern is the proper representation for the City of Windsor in this most important matter. Are we getting it?
Obviously, one of the things on Eddie's mind, as he said before is:
- “Mayor Eddie Francis called the timing of the lawsuit "predictable." He said the border crossing debate is at a critical juncture, with the city ramping up its opposition in recent months to the bridge company's bid for a twin span.
"The timing on this speaks volumes," Francis said. "It also speaks to the effectiveness of our strategy to protect residents of Windsor. When people resort to these type of tactics and setting up roadblocks, it's an indication we are being effective.
"The reason (the bridge company) is attempting to do this is they want the city and law firm to be distracted away from what they are trying to accomplish."
That was a reasonable position to take at first IE the Bridge Company does not want a major law firm acting against them.
However, that argument loses its force based on what is going on in the US Court system. I do not understand Eddie in this case when there is an admission of the conflict. Why would Eddie want to continue using Estrin? Eddie now has to bear the risk on behalf of the City of Windsor that Estrin will win. What if he does not? What happens then to the City’s position? Will citizens be prejudiced and how?
Seriously, could the continued representation by Estrin be made part of a bad faith claim by the Bridge Company against the City like the failure to allow them to tear down homes on Indian Road and the Heritage Plan? Is this just making it easy for a major punitive damages claim to be made that taxpayers would have to pay if the Bridge Company is successful? Who needs that risk!
But there is more. As I have pointed out before, Gowlings acted for Borealis, one of the owners of DRTP, and also for DCTC, a competitor of the City with respect to the Windsor/Detroit Tunnel. Why did Eddie want to use Estrin and Gowlings in this situation that started even before Estrin was first retained?
If. L. Brooks is correct, and there is a competition between Buffalo and Detroit for the next crossing, then why would Eddie use the environmental lawyer for the Peace Bridge, David Estrin?
Again, as a citizen of the City of Windsor I have to ask the question about whether the City has been well served by Gowlings given all their relationships. Were those relationships disclosed to the City in the first place and if so to whom? How can a law firm act for all these parties at the same time when it can be argued that the interests of the parties are not necessarily the same and are conflicting?
To be blunt because this is a question that needs to be asked… to whom does Gowlings owe their main loyalty? All of their clients, some of their clients and if so, which ones? How can they act for everyone vigorously and to the best of their abilities if there are so many potential and real conflicts?
Are there potentially other conflicts that we do not know about yet given the problems with the Gowlings conflicts system. Has that been looked into?
Lets take one example:
- “Although a different law firm prepared the memorandum, CenTra provided to Gowlings the Goodman Legal Memorandum and all of its supporting documents. This collection of materials, according to CenTra, is very similar to the research that Estrin described in his letter to the U.S. Coast Guard…
CenTra questions whether Estrin used CenTra’s Goodman Legal Memorandum in preparing Estrin’s letter on behalf of Windsor to the U.S. Coast Guard in opposition to CenTra’s Bridge Plan.
For his part, Estrin denies that he used any confidential information from CenTra. “The letter that I sent to the United States Coast Guard on September 14, 2006 is not based on confidential and/or privileged information that was supplied by Centra to Gowlings. I have never had any such information in my possession.”
How many other similar situations could take place as the fight with the Bridge Company is being pursued and why does the City need to be put into this kind of position?
The CBA Conflicts Report of which Estrin’s partner, Scott Jolliffe, was the Chair made this their test of conflicts:
- “The principle is that there is a conflicting interest when there is a substantial risk that a lawyer’s representation of a client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.”
You can decide as well as I can about how this applies in the City/Gowlings relationship considering all of the parties for whom the law firm acts.
All of this is much too confusing. There must be some method in all this madness but it escapes me.
What is also interesting is whether or not Council has had a role in this. Was there a vote on Monday night at the in camera session about whether to retain Estrin? It does not appear to be so since it seems to have been more of an information item. I would have thought that Eddie’s use of the word “absolutely” suggests that Council is on side. Yet, it seems clear that Council has specifically not supported the use of Estrin recently.
Is Eddie afraid to put this to the vote of Council because he might lose?
There is no doubt at all now that the front-page story about the Bridge Company’s “right” and the Estrin praise by Henderson were designed to keep Estrin on. So far at least, the tactic seems to be working.
As is usual, I am sure that there is more to this story than meets the eye. This is Windsor after all where nothing is simple.
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