While media reports last week questioned the Law Society of Upper Canada’s assertions that it doesn’t report lawyers who bilk clients to police because of solicitor-client privilege, others say the issue is a complex matter that requires more deliberation.
But some lawyers say the regulator shouldn’t be using solicitor-client privilege against the very people it protects.
“The privilege belongs to the client, not the lawyer,” says Trevor Guy, vice chairman of the Ontario Bar Association’s administrative law section.
“It’s the client’s choice whether to waive the privilege or not. It’s not something that belongs to the lawyer. It’s something that belongs to the client, so if the client is effectively saying, ‘I want you to investigate this and you are free to examine all of the communication between myself and the lawyer,’ then that should be the end of the matter.”
It’s therefore “odd” that when a client reports misconduct in the hopes of seeing action against the lawyer, solicitor-client is “in a sense used against the client because of the mere fact that there is a relationship between the client and the lawyer,” says Guy.
“In the ordinary course, sure, communications between a client and a lawyer are protected; in that sense it is sacrosanct, fundamental. But when you have a situation where a client is waiving that privilege with what I gather is an expectation that something is going to be done about an activity that is harming the client, I think most people would expect that something would be done by the governing body.”
But lawyer Bill Trudell, who often defends lawyers in disciplinary proceedings at the law society, criticizes the Star story as incomplete and notes the question of whether the law society should report lawyers to police isn’t a simple one to answer.
While lawyers must co-operate with a law society investigation and can’t refuse to participate, they have a right to remain silent in criminal investigations by police, says Trudell. It would therefore be wrong for the law society to hand over its investigative files to police, he adds.
“If the law society is turning over information to police, I think counsel defending lawyers are going to be very concerned about the interview process [at the law society],” he says.
“So it may very well be that counsel has to tell the law society or advise their client that they can’t co-operate in the circumstances because there is no guarantee that the fruits of that investigation are not going to be turned over to police.”
That’s just one example of how reporting lawyers to police is a complex issue, according to Trudell, who says the law society should consult with authorities before making any changes to its system.
“You know, I rarely defend the law society,” Trudell notes.
“But the law society is quite right to be careful in terms of the dissemination of files and information that might affect victims or solicitor-client privilege [that] might be breached.”
As a result, the law society should set up a committee at Convocation to look into how it may report cases with obvious signs of fraud to police without breaching any protected rights, Trudell suggests.
One option is for the law society to simply alert the police about a possible case of fraud without handing over its investigative files, he notes. Alternatively, it could let the lawyer know it will be sharing information with police and provide an option to raise solicitor-client privilege concerns through duty counsel.
But Guy says lawyers can’t assert solicitor-client privilege over the regulator if they’re under suspicion for misconduct.
“To a certain extent, taken to its logical extreme, how could lawyers ever be investigated or prosecuted for misconduct if the privilege belonged to them? Could they in every single case then say to the regulatory body, ‘Sorry, all of this is privileged; therefore you can’t see it?’” he asks.
Guy says even if the Rules of Professional Conduct don’t explicitly say the law society may report lawyers to the police, it’s “disingenuous” for it to use that as an excuse because it can amend the rules.
“The enraging aspect for a lot of people is that it’s disingenuous for the law society to say, ‘All of this is privileged and our hands are tied,’ when it’s the law society itself that can actually define the ambit through the Rules of Professional Conduct.”
He adds: “The reputation of our profession is at stake, but first and foremost it’s clients who are trusting members of our profession with, in a sense, their lives. This is something that’s critically important for us as a profession to be taking care of and ensuring that this kind of conduct gets reported and does not continue.”
The law society, “which overall is doing a good job in this area, should not overreact and start instituting a rush of interim suspension applications to be seen to be doing something,” says Trudell.
“We need to take a deep breath and calmly look at the issue to see if there is improvement necessary.”
For its part, the law society says its role isn’t one of criminal investigation.
“The law society is a regulatory body, not a criminal investigative body. As a regulator of legal services, the law society receives confidential and privileged information belonging to clients. In law, the client has the right to keep this information confidential and only the client can permit its disclosure,” the regulator says on a section of its web site dedicated to setting the record straight.
“For this reason, there are confidentiality protections for the information both under the Law Society Act and the common law. Within the limits permitted by law, the law society co-operates with law enforcement and encourages the reporting of suspected criminal activities to the police.”
But following the Star stories last week, it clarified its relationship with police. “The law society has a proactive relationship with police forces in Ontario, through which we explain to their members exactly where and how to find disciplinary information we post on our web site about every lawyer and paralegal facing a disciplinary hearing. Law society staff also meet regularly with members of police forces on individual cases police are investigating. We not only make the police aware of the possibility of criminal activity, we also help police to gather evidence, and, where appropriate, we encourage clients to work with the police,” it said in information posted on its web site.