A Toronto lawyer has filed a constitutional motion against the Law Society of Upper Canada alleging the regulator violated the Charter of Rights and Freedoms by compelling the production of solicitor-client communications during an investigation into her conduct.
Jodi Lynne Feldman appeared before a three-member panel at the law society last week after the regulator issued a notice of application against her for professional misconduct.
The law society alleges Feldman had engaged in sharp practice by failing to contact the solicitor representing the spouse of her client, B.K., before obtaining an uncontested order for divorce, by attempting to deceive the court, by understating B.K.’s income in an affidavit, by acting unkindly towards opposing counsel, and by failing to tell the other lawyer about the divorce order and B.K.’s subsequent remarriage. None of the allegations have been proven.
During the course of an investigation into Feldman’s conduct, the law society sought a production order for all communications between her and B.K. as it related to the alleged misconduct in question.
The investigation included interviews during which Feldman was required to answer questions that revealed the substance of her communications with B.K.
In January, Feldman brought a motion for an order finding the mandatory production of the privileged information violated s. 7 and 8 of the Charter. She also alleged s. 49.3 and 49.8 of the Law Society Act violated the same Charter provisions and sought an order returning all solicitor-client communications to her with any copies being destroyed.
In addition, Feldman is seeking to prevent the law society from relying on the privileged communications and a stay of the proceedings.
“One e-mail led to the investigation of Ms. Feldman,” said Michael Lacy, Feldman’s counsel at the hearing into the constitutional motion, on March 6.
“They were able to carry out the investigation and fulfil their mandate without breaking the solicitor-client privilege and they chose not to do so. The factual record at hand doesn’t support their investigation and there are several constitutional deficiencies within it.”
Lacy argued, among other things, that the law society’s request for documents was grounded in a low threshold. He also said no mechanism was available to challenge the law society on whether the documents were absolutely necessary.
“The law society didn’t carry out the act in a constitutional way. The panel must either accept the act is unconstitutional or the manner in which they carried out their investigation is unconstitutional. Either way, the act only allows for the interference of privilege when it is absolutely necessary.”
But Helen Daley, counsel for the LSUC in the matter, pointed to case law affirming the law society’s ability and power to violate solicitor-client privilege when necessary to protect the interests of the public and the client in question.
“The law society isn’t out with an axe chopping down clients’ privileges,” said Daley last week. “In fact, it is recognized by the Supreme Court of Canada for protecting solicitor-client privilege and is named custodians of the public interest.
There is a need to look at privileged information in some circumstances to protect the public and the law society is on the client’s side in this relationship.”
Daley added the panel shouldn’t operate on the assumption that the law society would abuse such powers or operate unethically simply because the possibility of doing so exists.
“The law society doesn’t seek to review privileged information if it is unnecessary, but privileged information cannot restrict the investigation.”
But several members of the panel and opposing counsel took issue with Daley’s position during the motion. The panel pointed to concerns over the manner in which the law society approached the protection of solicitor-client privilege and questioned why it requested and accessed e-mails occurring outside the time frame in which the alleged misconduct took place.
But Daley argued there wasn’t any evidence to suggest the LSUC carried out the investigation in an “unnatural way.”
“Ms. Feldman likely over-interpreted what was requested in the letter and sent more information than was necessary,” said Daley.
“It wasn’t privileged information but rather information shared between lawyers that was related to the divorce. In this particular case, it was necessary to examine all the client files, but in other cases it may not be.”
Daley added that information disclosed to the law society in the course of its investigation to protect clients like M.K. doesn’t undermine the purpose of protections for solicitor-client privilege.
The panel has reserved its decision on the motion.