Privilege and the role of the Law Society as an intervenor

The Advisory: Volume 9, Issue 2, August 2011

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Protecting the Public’s Confidence in the Client-Lawyer Relationship:

Privilege and the role of the Law Society as an intervenor

By Janet Dixon, QC, Senior Counsel, Law Society of Alberta

A CORNERSTONE goal of the Law Society is to uphold and preserve the principles of justice. In November 2010 the Benchers approved a three year strategic plan including as a key objective the following:

Principles of Justice: Uphold and preserve the principles of justice fundamental to a free democratic society, particularly client-lawyer privilege, the rule of law, and the independence of courts and lawyers.

The Law Society of Alberta takes an active interest in litigation matters occurring in the province or across Canada which potentially could infringe upon client-lawyer privilege. The Law Society responds promptly and appropriately to threats to the fundamental principles of justice and encourages individuals to bring any concerns of this nature to its attention.

From time to time the Law Society will seek intervention status to achieve this objective. Typically these situations arise when litigants are encouraging the court to embrace creative solutions to challenges faced by litigants in an ever changing social and legal environment.

Recently the Law Society intervened in a matter where a litigant was seeking to expand the breadth of a “Norwich like Order” to require production of client records from law firms, with the additional requirements that the lawyer was not to disclose the order to any party, including the client. In the past Norwich Orders have been obtained against many parties including financial institutions and internet providers. Typically these Orders are used to trace assets and the secrecy provision is critical to enable the applicant to act on the discovered assets before the defendant can relocate the assets. These Orders have always been viewed the court as a “last resort”.

The novelty of this action is that the material sought to be produced might have been subject to a claim of client-lawyer privilege, thus triggering other judicial principles that had not previously been applied to Norwich Orders.

Ultimately a resolution was achieved to ensure the continued protection of clientlawyer privilege through a variety of provisions including one stating no information would be released to the Plaintiff by the Independent Solicitor (similar to a referee) without approval of the Court on notice to the lawyer involved, the Plaintiff and the Law Society.

The Law Society of Alberta is keen to be kept aware of any developments in litigation which may put the protection of client-lawyer privilege at risk. The counsel department strives to be a resource to the judiciary to enable creative solutions to be crafted, respecting the need for continued innovation while protecting the clearly articulated principles of clientlawyer privilege.

The duty of a lawyer to protect a client’s right to assert a claim of privilege is fundamental to the client-lawyer relationship. Breaches of this duty erode client confidence in lawyers and may undermine the justice system. It is every lawyer’s obligation to remain alert to protect client information.

If you become aware of any Orders which may raise concerns regarding client-lawyer privilege please contact the Practice Advisor. Your inquiry will remain confidential. In appropriate cases, with your permission, the concern may be brought to the attention of the Law Society to consider whether the Law Society could assist the court as an intervenor in dealing with a novel development which may put client-lawyer privilege at risk.

Key Intervention Occurred in Blood Tribe vs Privacy Commissioner of Canada

As an example, one of the Law Society’s key interventions occurred when the Supreme Court of Canada upheld the rights of clients and lawyers to client-lawyer privilege in a Federal Court of Appeal case, Blood Tribe Department of Health v. Privacy Commissioner of Canada. Here the Commissioner’s order for records between a lawyer and a client was dismissed. This meant that clients are assured that information shared with their lawyers is, and will always remain, confidential.

The SCC noted in its decision that clientlawyer privilege “is fundamental to the proper functioning of the legal system. Without that assurance, access to justice and the quality of justice in this country would be severely compromised. It is in the public interest that the free flow of legal advice be encouraged.”

The President of the Law Society of Alberta at the time, Perry Mack, QC, noted that “this case is important as the Law Society of Alberta was concerned that the position of the Privacy Commissioner would affect the basic right of every Canadian to access justice.”

“To the Law Society of Alberta,” Mack explained, ‘there was the risk that its ability to regulate the legal profession in the public interest could be impaired if client-lawyer privilege could not be maintained, thus compromising the fundamental principles of justice.”

The SCC report reiterated that “client confidence is the underlying basis for the solicitor- client privilege, and infringement must be assessed through the eyes of the client.”

The SCC stated: “The Commissioner is an officer of Parliament vested with administrative functions of great importance, but she does not, for the purpose of reviewing solicitor-client confidences, occupy the same position of independence and authority as a court.”

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