Tuesday, March 6, 2018

Law Society Wrestles With Transparency v. Protected Information In Bar Proceeding

The Tribunal Hearing Division of the Upper Canada Law Society granted a motion of the Law Society to accept evidence without public disclosure

The open court principle is fundamental to our legal system. Adjudicative transparency is particularly important in the context of self-governing professions. Transparency assures members of the public that they may have confidence in the impartial and fair resolution of issues before the Tribunal.

The protection of solicitor-client privileged information is also fundamental to our legal system. It must remain as close to absolute as possible. Although solicitor-client information must be available in Law Society investigations and Tribunal proceedings, it should not be compromised in holding lawyers accountable.

The matter

In this conduct application, the Law Society alleges that Mr. McLean engaged in professional misconduct by failing to serve one client: in preparing for her litigation; responding to her in respect of preparation; because of the manner in which he got off the record in that litigation; by withdrawing trust funds to pay an account when those funds had been earmarked for another purpose; and by failing to advance two civil actions.

 The Law Society seeks to protect information belonging to the client, Ms. Johansen. Mr. McLean acted for her in defending tax evasion charges and consequent assessments by the Canada Revenue Agency (“CRA”). With Mr. McLean’s assistance, Ms. Johansen settled her dispute with the CRA. The settlement involved a guilty plea and the payment of monies.

The Law Society presented affidavits and a Consolidated Request to Admit and Response that it asked be made non-public, as well as redacted versions of those same documents that it asked be made public. The bulk of the redacted information is communications between Ms. Johansen and her lawyers about her dispute with CRA. There are also a number of redactions of settlement discussions with CRA and in two documents that set out detailed financial information about Ms. Johansen’s business and expenses. The basis for seeking the non-public order is that the redacted information is subject to solicitor-client privilege, settlement privilege or is highly personal financial information that is not germane to the subject of the allegations.

Where the panel determines that an order must be made, it must be the type of order that affects openness the least while, at the same time, protecting the information. The Law Society advised that the practice of replacing names in affidavits to obscure the affiant or person’s identity was insufficient in this case because the client whose information is sought to be protected, Ms. Johansen, is a business woman who runs daycares in North Bay, a smaller community in Northern Ontario. There are already public documents that make it clear that Mr. McLean was her lawyer from time to time in relation to the matters before the Tribunal. We accept that initials are not sufficient to protect the privacy and privilege interests in this case.

As to solicitor-client privilege

The solicitor-client privileged communications will be protected by accepting the non-public affidavits and Consolidated Request to Admit and Response and allowing the filing of public versions in which the information has been redacted. There are no highly unusual circumstances to justify a departure from the near absolute protection for solicitor-client communication in a Tribunal proceeding. The information is clearly subject to the privilege, which has not been waived.[11]

The solicitor-client privileged communications will also be protected by an order that the proceeding will be held, as necessary or completely, in the absence of the public for the portions of the testimony of any witness who is speaking to documents and conversations which are privileged.

And the settlement privilege

The Law Society identified information in the affidavits and Consolidated Request to Admit and Response that were in the nature of settlement negotiations which it argued were subject to settlement privilege. It relates to communications between Mr. McLean or Ms. Johansen and CRA officials about the terms under which Ms. Johansen would settle her outstanding dispute with the CRA and plead guilty to charges.

The information discloses the negotiations and compromises made by the parties to the settlement. It is therefore properly subject to settlement privilege. The privilege has not been waived for the same reasons set out above. There is no indication that the information contained in these communications goes to the heart of the complaints before us. The privilege belongs to Ms. Johansen and the CRA, not to Mr. McLean. Mr. McLean did not identify any public interest in disclosure that outweighed the public interest in encouraging settlement and keeping the negotiations confidential. 

We ordered that the settlement-privileged information and any portions of testimony speaking to those documents will be not public.

Finally the issue of personal financial information

The Law Society asked that two documents containing detailed financial information of Ms. Johansen’s business be protected under Rule 18.02(c). Mr. McLean argued that the information was publicly available through normal business filings. He did not provide any evidence to that effect nor did he argue that that the documents were important to the case. Ms. Johansen is a witness, not a party, in these proceedings. We have no evidence or reason to believe that Ms. Johansen’s two documents are already in the public realm or go to the heart of the matter before us. In these circumstances, protecting this sensitive information of a non-party witness outweighs the public interest in open proceedings. We ordered that the documents and any testimony addressing them will be non-public.

(Mike Frisch)


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Great post!!

Posted by: Alice | Mar 7, 2018 7:15:08 AM

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