Harvey Strosberg figured he was asking a small favour when he tapped partner Allan Rock to replace him at a class-action hearing last month so he could make a prearranged family holiday.
To Mr. Strosberg's horror, that request set in motion a series of legal actions that culminated last week with Mr. Rock, Canada's former minister of justice and minister of health, being hoofed off the case by an Ontario judge.
More significantly, the judge's decision appears to restrict the scope of future case work for lawyers returning to private practice after a government tour as a minister or senior bureaucrat. To name a few, lawyers potentially at risk include former federal ministers Martin Cauchon (Gowling Lafleur Henderson LLP), John Manley (McCarthy Tétrault LLP), and Anne McClelland (Bennett Jones LLP).
"The significance of this is far reaching," said Paul Pape, a Toronto litigator and friend of Mr. Strosberg. "If this decision is right, then lawyers who return to practice from senior government roles will see their case work reduced substantially."
Mr. Rock won't comment on the case and Mr. Strosberg could not be reached for comment. One source close to the two men said they are "spitting mad" at the decision and are currently in discussions with outside counsel about a potential appeal.
How did the prominent lawyers land in such a mess? Their story begins with a small ivory pill known as Vioxx. When Vioxx's maker, Merck & Co. Inc., recalled the drug in 2004 after the medicine was linked to strokes and heart attacks, the U.S. drug company faced a slew of lawsuits. Last year, Merck made legal history by doling out a record $4.85-billion (U.S.) to settle U.S. claims.
In Canada, the lawsuits have moved at a snail's pace thanks to a combination of turf battles between plaintiff lawyers over who would lead the actions and court delays sought by Merck. At the moment, Canadian class actions against Merck have been certified in Saskatchewan and Quebec.
Mr. Strosberg and his team at Sutts Strosberg LLP were seeking to win certification from Mr. Justice Maurice Cullity of the Ontario Superior Court at a hearing set in mid-February. But days before Mr. Rock was to appear on Mr. Strosberg's behalf for the hearing, Merck's lawyers threw him a curveball. One of Merck's Canadian lawyers, Heenan Blaikie LLP veteran litigator David Roebuck, launched a motion to disqualify both lawyers on the grounds that Mr. Rock allegedly had a conflict of interest.
Depending on your point of view, the move signalled two things. One, Merck was engaging in a clever bit of legal handiwork aimed at pushing Mr. Strosberg, one of Canada's most feared class-action litigators, off the case. Or perhaps Merck had a loftier agenda, a desire to clarify Canada's seldom-tested standards for conflicts involving legal professionals who once served as senior public officials.
The first conflict Merck cited was that Mr. Rock allegedly participated in discussions that led to the approval of Vioxx in Canada during his tenure as minister of health from 1997 to 2002. For the second conflict, Merck's lawyers trotted out the Law Society of Upper Canada's rules of professional conduct. Specifically, they focused on rule 6.05 (5), which states: "A lawyer who has left public office shall not act for a client in connection with any matter for which the lawyer had substantial responsibility before leaving public office."
In a decision handed down last week, Judge Cullity dismissed the first allegation that Mr. Rock was offside after he found the former minister had no access to confidential Merck information at Health Canada. The judge agreed with Mr. Rock's deposition that the department's practice was to "entirely isolate" the minister from the regulatory drug approval process.
The stickier issue for Judge Cullity was the professional conduct rule. This rule was designed to maintain public confidence in the integrity of governments and courts. That integrity, he wrote, would be damaged if governments were sued by lawyers who once had a "substantial public responsibility" at the department or agency targeted by the litigation.
Although Judge Cullity agreed Mr. Rock had no role or responsibility for the approval of Vioxx, he wrote that public confidence would be damaged by the spectre of Mr. Rock potentially cross-examining Health Canada witnesses if the case went to trial.
It would be "invidious," he wrote, for a "former minister to be able to challenge the evidence of such persons ... with respect to matters that occurred in the department while he was in charge of its affairs and responsible to Parliament for its conduct."
Toronto litigator Mr. Pape argues that Judge Cullity "may not have it right" because he did not meet the Law Society's test of showing that Mr. Rock had a "substantial public responsibility" for the Vioxx approvals.
"Given the broad reach of the reasons here it is something that a higher court may be interested in reconsidering," Mr. Pape said.
There is much at stake for Mr. Rock and other former senior public officials. Class actions, particularly health-related cases, are the fastest-growing source of litigation in Canada. If Judge Cullity's decision stands, Mr. Rock and other government alumni will be watching many of these court battles from the sidelines.