Law Times

May 12, 2014

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/309693

Contents of this Issue

Navigation

Page 1 of 15

Page 2 May 12, 2014 • Law TiMes www.lawtimesnews.com NEWS Should LSUC be reporting lawyers suspected of crimes to police? By yamri Taddese Law Times hile media reports last week ques- tioned 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. e law society told Toronto Star reporters it generally doesn't go to police with its investigative findings when there's suspected criminal activity by lawyers. e details of communication be- tween members of the public and their lawyers are subject to solic- itor-client privilege, the regula- tor responded in articles raising questions about reporting poten- tial criminal activity by members of the legal profession. But some lawyers say the regulator shouldn't be using so- licitor-client privilege against the very people it protects. "e privilege belongs to the client, not the lawyer," says Trev- or Guy, vice chairman of the On- tario Bar Association's adminis- trative law section. "It's the client's choice whether to waive the privi- lege or not. It's not something that belongs to the lawyer. It's something that belongs to the client, so if the client is effec- tively saying, 'I want you to in- vestigate this and you are free to examine all of the commu- nication between myself and the lawyer,' then that should be the end of the matter." It's therefore "odd" that when a client reports mis- conduct in the hopes of see- ing 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 protect- ed; 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 oen defends lawyers in disci- plinary proceedings at the law society, criticizes the Star story as incomplete and notes the ques- tion 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 investiga- tion and can't refuse to par- ticipate, they have a right to remain silent in criminal in- vestigations 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 turn- ing over information to po- lice, I think counsel defend- ing 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 so- ciety 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." at'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 infor- mation 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 so- ciety to simply alert the police about a possible case of fraud without handing over its investi- gative files, he notes. Alternative- ly, 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 as- sert solicitor-client privilege over the regulator if they're under sus- picion 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 ex- plicitly 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. "e 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 Pro- fessional Conduct." He adds: "e reputation of our profession is at stake, but first and foremost it's clients who are trusting members of our profes- sion with, in a sense, their lives. is is something that's critically important for us as a profession to be taking care of and ensuring that this kind of conduct gets re- ported and does not continue." e law society, "which over- all 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 improve- ment necessary." For its part, the law society says its role isn't one of criminal investigation. "e law society is a regula- tory body, not a criminal inves- tigative body. As a regulator of legal services, the law society receives confidential and privi- leged 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 com- mon law. Within the limits per- mitted 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 relation- ship with police. "e law society has a proactive relationship with police forces in Ontario, through which we explain to their mem- bers exactly where and how to find disciplinary information we post on our web site about every lawyer and paralegal fac- ing 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 possibil- ity of criminal activity, we also help police to gather evidence, and, where appropriate, we en- courage clients to work with the police," it said in information posted on its web site. LT W It would be wrong for the law society to hand over its investigative files to police, says Bill Trudell. Let experts guide you through the substantive and procedural law governing the law related to litigation involving the Federal Crown. The Annotated 2014 Crown Liability and Proceedings Act includes the full English and French text of the Crown Liability and Proceedings Act, section-by-section commentary, digests of all relevant judicial decisions, and cross-references to related legislative provisions and secondary sources. You'll find expert analysis of the vicarious liability of the Crown, the nature of duties owed by the Crown, the limits on the availability of injunctive relief, and the immunity of the Crown and its agents from provincial legislation. And you'll get all the significant case law so you'll know exactly how the legislation has been applied by the courts. With a copy of The Annotated 2014 Crown Liability and Proceedings Act by your side, you'll be confident you're interpreting the legislation correctly. And you'll be certain you understand all the latest developments and cases that could impact your claim or defense. Get expert Guidance on the law GoverninG litiGation involvinG the federal crown New editioN The AnnoTATed 2014 Crown LiAbiLiTy And ProCeedings ACT ThE hon. Mr. JusTiCE DonALD J. rEnniE, BriAn J. sAunDErs, MiChAEL h. Morris, AnD JAn BrongErs order # 985555-65203 $190 hardcover approx. 300 pages December 2013 978-0-7798-5555-1 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. 00216ZZ-A44939 AVAiLABLe RiSK-FRee FoR 30 dAYS order online: www.carswell.com Call toll-Free: 1-800-387-5164 in toronto: 416-609-3800

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - May 12, 2014