The Alberta Court of Appeal has reversed an order disqualifying Gowling WLG from acting in Piikani Nation litigation, ruling that an executive who communicated with a company’s lawyers did not become their personal client or near client merely because he was their main contact.
The unanimous June 11 decision in Piikani Nation v McMullen, 2026 ABCA 189 also rejected the suggestion that the executive’s claimed near-client status entitled him to full access to the firm’s corporate files. The ruling concerns conflicts and access to legal records, not the merits of his claim for reimbursement of legal fees.
A corporate relationship and a separate personal retainer
Dale McMullen had been a senior manager and director of two Piikani Nation business entities, Piikani Investment Corporation and Piikani Energy Corporation. Gowling performed legal work for those companies while he was its principal contact. The firm had also represented him personally in an employment matter that closed in 2008.
Piikani Nation and related parties sued McMullen and others in 2010 over alleged misconduct connected to the Piikani Trust. He later brought a separate proceeding seeking indemnification for his defence costs. When the Nation’s long-standing lawyer, Caireen Hanert, joined Gowling in 2018, she brought the litigation files with her. McMullen applied to disqualify her and the firm.
The firm established an ethical wall around its historic company files and the earlier employment file. The case-management judge found no personal confidential information was at risk and found the employment matter unrelated. Nevertheless, he treated McMullen as a near client because of his role in instructing the firm for the companies and disqualified Gowling.
By the time of the appeal, the main action had been discontinued against McMullen, but his indemnification proceeding remained. The court explained that the changed procedural position did not remove the issue: the Nation’s anticipated defences to indemnification would mirror allegations made in the earlier action. The appeal did not decide those allegations or whether indemnification was owed.
Duties turn on the relationship, not the contact label
The appeal court distinguished the rules governing current clients, former clients and people who were never clients. Lawyers’ obligations to current clients include loyalty beyond protecting confidential information. Former-client conflicts depend on matters such as related work and the risk of misusing confidential information; an unrelated past retainer does not automatically bar a firm from acting adversely.
A non-client can sometimes obtain a lawyer’s disqualification, including where a reasonable expectation of confidentiality or loyalty is established or where the administration of justice requires protection. The court did not abolish that possibility or require a formal retainer in every case. It required a contextual assessment of the interests the professional duties protect.
Here, relaying a company’s instructions, receiving advice for it and approving payment of its lawyers’ bills did not, without more, create a personal client or near-client relationship. The duty of loyalty in those circumstances was owed to the corporation. Familiarity with an executive’s thinking or personality did not itself establish a risk of misusing confidential information.
The companies were also separate legal entities, closely held by Piikani Nation rather than by McMullen. Their confidential information and solicitor-client privilege belonged to them. The court rejected an analysis that treated the companies’ representative as the true client simply because he dealt extensively with their lawyers.
Disqualification could not rest on speculation
The case-management judge had also misapplied earlier decisions. A rule permitting exceptional disqualification at a non-client’s request did not transform that person into a client with all the accompanying rights. Nor could rules governing adverse representation of a former client in a related matter simply be applied to a former corporate contact.
An evidentiary problem further undermined the order. The judge had relied on the premise that Gowling drafted an indemnity agreement involved in the dispute. The appeal court found that premise unsupported: the agreements discussed dated from 2004, before the firm’s involvement, and the record did not establish that Gowling drafted the agreement at issue.
The court also emphasized how little had been established about the specific transactions and advice relevant to the litigation. McMullen bore the burden on his application, and the firm could not be disqualified on speculation. The possibility of independent counsel handling particular firm-related issues, once properly defined, further weakened the case for disqualification on the existing record.
McMullen separately maintained that he was a former personal client on related matters. The court found no reviewable error in the findings that the employment file was unrelated and that no relevant personal confidential information was at risk. It left open whether different, properly established circumstances involving a former corporate contact could justify disqualification to protect the administration of justice.
Corporate privilege stayed with the companies
The court rejected the lower judge’s suggestion that near-client status likely gave McMullen full access to Gowling’s files from his time as an executive. That suggestion had no supporting evidentiary or legal analysis. Corporate privilege belonged to the companies, and a former officer could not retroactively waive it on behalf of a company for which he no longer worked.
The appeal was allowed, with the court directing that it would prepare the resulting order. The decision protects neither every law firm from a conflicts challenge nor every executive from later adverse representation. Its central limit is that a corporate contact’s status alone cannot substitute for proof of the relationship, confidentiality risk or other circumstances needed to justify removing counsel.
