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LAw times • August 22, 2011 Profession has lost sight of true purpose behind legal protection: prof NEWS Time for revamp of solicitor-client privilege? BY MICHAEL McKIERNAN Law Times HALIFAX — The legal profes- sion in Canada has lost sight of the true purpose for solicitor- client privilege in recent years, according to a University of Ot- tawa law professor. When it emerged in English common law, privilege aimed to protect the powerless, said Adam Dodek during a debate at the Canadian Bar Association's annual conference in Halifax last week. But today in Canada, it further strengthens society's most powerful players, includ- ing governments and corpora- tions, he added. "Th e privilege was recognized in order to allow vulnerable per- sons to seek expert legal advice. It was not created in order to help those who exercise power in the public or private sphere to hide behind the protection aff orded by the privilege." According to Dodek, privilege has evolved within the last decade to a constitutional right from a simple rule of evidence, a change bolstered by numerous Supreme Court of Canada decisions and the vigorous intervention of the Canadian Bar Association. Dodek's opponent at the de- bate, Mahmud Jamal of Osler Hoskin & Harcourt LLP, has been at the heart of that defence by intervening on the CBA's be- half at the Supreme Court in cases touching on privilege. Th e debate aimed to challenge tradi- tional notions of privilege by cast- ing Dodek as the "heretic to my fundamentalist," Jamal noted. Dodek argued that privilege shouldn't extend to corporations or governments because it's best understood as a human right protecting an individual's right to privacy and dignity. "Privilege was meant to protect living breathing human beings who have to tell their innermost embarrassing se- crets to a lawyer in order to exer- cise their right to counsel under our legal system," Dodek said. "It makes no sense when applied to non-human entities. Th ese orga- nizations do not have human dig- nity because they're not human." But according to Jamal, fo- cusing on individuals underes- timates the signifi cance of privi- lege. He quoted the Supreme Court's 2001 decision in R. v. McClure, in which it said that the importance of the relation- ship between solicitor and client "stretches beyond the parties and is integral to the workings of the legal system itself." "Corporations, like humans, need a zone of privacy in order to seek legal advice," Jamal said. "Th ey have the same interest in this as everyone else. Without the zone of privacy and legal protection aff orded by the priv- ilege, corporations will simply not seek legal advice and that would not be in the broader public interest." But in an era of transparency and openness, Dodek said gov- ernments should be able to func- tion without the cloak of secrecy described by Jamal, especially since they work under a duty of loyalty to the public. He also called for an expan- sion of the existing exceptions to privilege. Th e Supreme Court has recognized two circumstances where privilege yields: where public safety is at risk or there's a danger of a wrongful conviction. Dodek said that should be broad- ened to include a reasonable be- lief of fi nancial harm. Recent scandals in the United States, such as the Enron aff air and problems with sub-prime mortgages, have shown the po- tentially devastating impact of fi - nancial harm. As a result, lawyers there are coming under pressure from securities regulators to act as whistleblowers, Dodek said. If Canadian lawyers wish to self-regulation, preserve they should act themselves to broaden privilege to deal with fi nancial issues, he argued. "If we have a national securities regulator, which I think we eventually will, ultimately it is going to take a far greater interest in regulating harm. Financial harm can't be described in the same way, he said. "Th e law will not allow harm that cannot be compen- sated to occur," Jamal said. "By defi nition, fi nancial harm can always be remedied." Another area where privilege Solicitor-client privilege 'makes no sense when applied to non- human entities,' says Adam Dodek. lawyers in the public sphere than under the current provincial di- vided power of securities regula- tion. When these scandals break, people always ask where were the lawyers. How much longer do we think we can sit on our hands?" In any case, according to Dodek, the courts have tacitly recognized a fi nancial exception to privilege when lawyers defend themselves against allegations of misconduct or malpractice. "Th e public deserves the same oppor- tunity for protection from fi nan- cial harm as lawyers have allowed for themselves," he said. But in Jamal's view, the ex- isting exceptions are linked by the concept of irreparable TRUST THE INSIGHT CITED IN MORE THAN 100 DECISIONS NEW EDITION THE LAW OF CONTRACT IN CANADA, SIXTH EDITION PROFESSOR GERALD H.L. FRIDMAN, Q.C., F.R.S.C. The sixth edition of this classic work continues to organize and rationalize legal research to save you time. As a well-known authority on contract law, it has been cited by judges over 100 times and continues to be referenced by the courts. The Law of Contract in Canada, Sixth Edition is more than a compendium of case law. Professor Fridman's commentary will help you come to grips quickly with even the most complex contract law principles. It provides a Canadian focus, but also includes a complete review of British and Commonwealth decisions relevant to Canadian practitioners. 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Whether they go to a paralegal or lawyer, they should be en- titled to the same protection of their communications." Jamal conceded that paralegals have the strongest claim to privi- lege but said fi nancial advisers and patent agents lacked the "same nexus to the operation of the legal system" as lawyers. "It's not about the insecurities of the legal pro- fession. It is about the principle justifi cation of the privilege. Th at is the essential or integral role of the lawyer to the operation of the legal system." PAGE 5 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Untitled-5 1 www.lawtimesnews.com 8/17/11 4:04:51 PM