.

THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON February 27, 2002

I'm still guarding your secrets...


Somewhere, tucked away in the topmost part of my brain, better known as the cerebellum, lies a vast amount of confidential information that I've accumulated over the last 30 years. While some of it would make interesting material for this column, the likelihood is that I'll be carrying it to my grave. I can assure you that it goes beyond a question of trust or ethics. Even though some of the individuals who confided in me are dead, I'm still prohibited by law from divulging their secrets. It all began with a modest ceremony in 1969 when I took my first oath of secrecy. Without it, I would have been refused membership to the Quebec Order of Advocates, better known as
the Quebec Bar.

Therefore, before dozens of witnesses, I swore to keep absolutely secret the confidences that would be made to me by reason of my new professional status. Believe me, the oath was much more than an old historical relic - any breach meant that I could be disbarred and sued for damages.

Welcome to the attorney-client privilege. While it is the oldest of the privileges for confidential communications known to the common law with roots dating back to the 16th century, it still remains one of the least understood.

Privilege belongs to the client, not the lawyer

The first misconception is that the privilege belongs to the attorney. Quite the contrary, it belongs to the client so as to protect him against his attorney from ever disclosing their private communications. It wasn't always like that. The early privilege which dates back to the reign of Elizabeth I belonged to the attorney, and the client benefited from it by ricochet.

A few more misconceptions

Another common misconception is that the attorney has a say on whether he can disclose his clients' confidences. Not so, failing a court order, the client and only the client can expressly or implicitly relieve his attorney from the veil of secrecy. This is equally true for clients who happen to be government bodies or corporations. Then there are those who believe that the privilege only prohibits the attorney from being questioned in court regarding privileged communications. The truth is that it also protects the client from being compelled to disclose in court what he confided to his attorney. The rationale of the privilege

Why is it that a lawyer's client benefits from such all-out protection, which is unparalleled with any other profession? The simple truth is that the legal system, complicated as it is, could never be effective unless citizens were able to obtain legal advice from professional experts. Remove the privilege and it would become impossible to encourage "full and frank" communications between attorneys and their clients. No client would be inclined to reveal his confidences if he knew that his lawyer could be forced to disclose them. Without such confidences it would be impossible for an attorney to defend a client -whether innocent or guilty - in a court of law.

When the privilege doesn't apply

For the privilege to apply, the communications have to do with legal advice being sought or offered or, in other words, when the lawyer is being contacted in his professional capacity. The required professional relation doesn't kick in when a friend or acquaintance confides in a lawyer at a social gathering or when a lawyer acts as a company executive. To qualify as privileged it is also crucial that the communications originate with an expectation of confidentiality. Last but not least the communications are never privileged when they are made for the purpose of obtaining legal advice to facilitate the commission of a crime.

Prosecutors and the police

One interesting issue is whether the attorney- client privilege applies to communications between prosecutors and police officers. Although Quebec prosecutors are first and foremost lawyers, they are required by law to take an additional oath, which has even a wider scope. They must swear or solemnly declare that they will not reveal or disclose, unless duly authorized, anything that comes to their knowledge in the discharge of their duties. Consequently, in 1973 I was obliged to take a second oath.

Up until a few years ago, I was convinced, that no lawyer-client privilege existed between prosecutors and police officers. Contrary to lawyers who take their instructions from their clients, prosecutors represent the Attorney General in courts of criminal and penal jurisdiction. Furthermore, by virtue of their public duties and the many rules governing the communication of evidence, prosecutors have a duty to disclose to the accused all of the available evidence. This includes the details as to how the evidence was obtained including admissions by police investigators that amount to misconduct. Furthermore, if an investigator is naive enough to confide to a prosecutor that he "roughed" up an accused in order to extract a confession or that he committed perjury, the prosecutor must relay the information to another prosecutor so that she or he may consider criminal procedures. It was always my opinion that if a prosecutor had a "client" it was either the public in general or the Attorney General in whose name every prosecutor act. On the other hand, according to the Criminal Code prosecutors are the "agents" of the A.G or his "substitutes" and therefore how could he be their client?

But then in 1999, along came an important Supreme Court of Canada ruling that had to do with a reverse sting drug operation with the RCMP. It turned out that the operation was illegal despite having obtained legal advice to the contrary from an experienced senior Department of Justice lawyer. One of the legal issues before the high court was whether the defense could subpoena the Department of Justice attorney to testify about the communications that had occurred with the RCMP officers with respect to the legality of the reverse sting operation. The judges ruled that even though the lawyer worked for "an in-house government legal service", it did not affect the character of the client/solicitor privilege. However, since the police were deemed to have renounced to their privilege, the questions were permitted.

No reason to worry

As for those of you who are still worrying that one-day I may blurt out your secrets, don't. My lips are forever sealed and besides, thanks to years of retirement I've already forgotten most of them. Next week: Commissions of Inquiry comments: