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LSUC issues guidelines on law office searches

|Written By Michael McKiernan

The Law Society of Upper Canada has drawn up guidelines for lawyers facing a police search of their law offices.

The guidelines apply to lawyers only as ‘the law is not yet settled on the issue of privilege with respect to paralegals,’ says Paul Schabas.

Bencher Paul Schabas, who chairs the professional regulation committee, said the protocol would be available to lawyers in the form of a two-page checklist as well as a long-form version.

“Sometimes you don’t get a lot of time to look at the guidelines when the police are knocking on the door, so we have a quick overview,” Schabas said while presenting the guidelines to Convocation on Sept. 22.

“There are details that you can read at your leisure, hopefully not when you’re in custody, because one of the points that is made up front is whatever you do, do not obstruct the search.”

Instead, lawyers should closely examine the search warrant provided by police to check that they’ve arrived at the correct place on the right date. The warrant should also be signed and identify both the offence under investigation and the documents sought.

Lawyers should assert privilege over all documents to be seized. They should also ask to seal everything so that a court can make a determination on what is privileged at a later date.

In the event that the lawyer is the target of the investigation or may be in a conflict of interest, the guidelines say this should be raised with police so that a court-appointed referee can become involved. In addition, the court may want to appoint an independent forensic computer examiner.

“Often, searches will be seeking info on a computer, and there are lots of complexities involved with that,” Schabas said.

The guidelines suggest lawyers should help police to locate the documents but also take copies of all of the materials seized if that’s possible. Clients whose files are affected should be notified about what’s happening as well as the law society itself.

“The law society may have an interest in being involved. They may provide assistance. They can provide the names of people who can serve as referees, for example, or as independent forensic computer examiners.

The law society is very active publicly in defence of solicitor-client privilege and the development of these guidelines is simply another step in that work we do.”

Last year, in fact, the law society intervened in the case of Timmins, Ont., criminal lawyer Brad Sloan. When police raided his home and office as part of a child pornography investigation, the LSUC sent a representative to observe the search.

At the time, the law society said officers shouldn’t be allowed to search the computers seized and even objected to police storing them because of the risk of an accidental breach of solicitor-client privilege.

In April 2010, Ontario Superior Court Justice Patricia Hennessy appointed an associate partner at Deloitte & Touche LLP to act as independent examiner in the case with the task of storing the computers, separating privileged files, and isolating any potentially offensive materials.

“Any number of ongoing prosecutions would be at risk if there was any finding whatsoever of the slightest breach of the solicitor-client privilege, no matter how inadvertent,” Hennessy wrote, praising police for their co-operative attitude.

Sloan is facing two counts of possession of child pornography and a further charge of distributing child pornography. An out-of-town judge will hear the case, which is due to return to court on Nov. 17.

According to Schabas, law enforcement organizations played an important role in the development of the guidelines. Eleven police forces were among the 20 groups and individuals that made submissions when the guidelines first went out for public consultation in 2008.

The guidelines actually have their roots even further back in the 2002 decision of the Supreme Court of Canada in Lavallee Rackel & Heintz v. Canada (Attorney General). That decision struck down s. 488.1 of the Criminal Code that  governed law office searches.

The majority of the court found that the section was unconstitutional because it caused “more than minimal impairment to solicitor-client privilege” and allowed for potential breaches of the privilege “without the client’s knowledge, let alone consent.”

In 2004, the Federation of Law Societies of Canada came up with its own protocol for law office searches. The LSUC used that as the basis for its own version.

“We decided, based on our experience and cases that the law society has intervened in, that our own guidelines should be developed,” Schabas said.

The guidelines apply to lawyers only, Schabas explained, as “the law is not yet settled on the issue of privilege with respect to paralegals.”

For related content, see "Lawyer's child-porn trial hits roadblocks."

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