Law Times

PAGE 4 NEWS Charter rights Lawyer alleges LSUC probe violates solicitor-client privilege BY KENDYL SEBESTA Law Times ing the regulator violated the Char- ter of Rights and Freedoms by com- pelling the production of solicitor- client communications during an investigation into her conduct. A J Toronto lawyer has filed a constitutional motion against the Law Society of Upper Canada alleg- Jodi Lynne Feldman appeared before a three-member panel at the law society last week aſter the regulator issued a notice of appli- cation against her for professional misconduct. The law society alleges Feld- man 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 af- fidavit, by acting unkindly towards opposing counsel, and by failing to tell the other lawyer about the di- vorce order and B.K.'s subsequent remarriage. None of the allegations have been proven. During the course of an inves- tigation into Feldman's conduct, the law society sought a produc- tion order for all communications between her and B.K. as it related to the alleged misconduct in ques- tion. 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 ustice Patrick Gravely, a judicial trailblazer involved in creating Canada's first unified fam- ily court in a 1977 pilot project in Hamilton, Ont., died on Feb. 29 at his home in Toronto. Gravely's work with his fellow judges eventually helped lead to the creation of 39 unified family courts across the country. "I'm very sad to see him go. He was a great gentleman and a great jurist," says Hamilton family law solicitor Gordon Morton. "As a trial judge, he was extremely careful not to indicate favour to one side or the other. He kept a stone face throughout and most litigators felt their case had been heard when they appeared before him." Morton notes Gravely, who was 79, had a significant impact on Ontario's judicial system. "He was self-effacing and a very good model of what a trial judge should be. He was patient and treated everyone with kindness. He always had a great camaraderie with fellow judges." — KS a motion for an order finding the mandatory production of the privileged information violated s. 7 and 8 of the Charter. She also al- leged 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 rely- ing on the privileged communica- tions and a stay of the proceedings. "One e-mail led to the investi- gation of Ms. Feldman," said Mi- chael 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 man- date 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 re- quest for documents was ground- ed in a low threshold. He also said no mechanism was avail- able 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 un- constitutional or the manner in which they carried out their in- vestigation 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 Su- preme Court of Canada for pro- tecting 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 YOUR CROSS-CANADA GUIDE TO CIVIL FOR FEITURE LAW AND PROCEDURE NEW PUBLICATION CIVIL ASSET FORFEITURE IN CANADA JEFFREY SIMSER AND JAMES MCKEACHIE Civil asset forfeiture law is complex and the cases move quickly. 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But Daley argued there wasn't any evidence to suggest the LSUC carried out the investigation in an "unnatural way." "Ms. Feldman likely over-inter- preted what was requested in the letter and sent more information than was necessary," said Daley. "It wasn't privileged infor- mation but rather information shared between lawyers that was related to the divorce. In this par- ticular 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 solic- itor-client privilege. The panel has reserved its deci- LT sion on the motion. March 12, 2012 • Law TiMes Judicial trailblazer dies

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