Canada: Public Access To Lawyer's Accounts: Are We Seeing A Two-Tier Application Of Professional Secrecy?

Last Updated: July 26 2017
Article by Karl Delwaide and Antoine Guilmain

In theory, solicitor-client  privilege is constitutional or quasi-constitutional in nature, as it would be protected, depending on the circumstances, by either the Canadian Charter of Rights and Freedoms1 or the Quebec Charter of Human Rights and Freedoms.2 Our legal system is based on the fundamental right of individuals to consult their lawyer with complete freedom, and it without fearing that what they say will become public or be disclosed in court (subject to some exceptions that we will not address here). The privilege belongs to the client; only the client can waive it, and only where it is clearly established that the client has done so.

The public bodies subject to the Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information3 ("Access Act") are also entitled to professional secrecy, and that secrecy will take precedence over the limited exemptions from release in response to an access request.

One Decision-Maker, Two Decisions, Two Results

The Commission d'accès à l'information of Quebec ("CAI") recently had the occasion to address this issue—two occasions, in fact. In two decisions, issued on April 10 and 12, 2017, Commission member Philippe Berthelet considered whether the accounts of lawyers retained by a public body, and, more specifically, the amount of the fees charged, including the total amount, are public. Two cases heard by the same member, but with two different decisions: is this logical? We would note at the outset that although the decisions address the right of public bodies to protection of information covered by solicitor-client privilege, their ramifications and consequences apply equally to private sector businesses. This is what we will attempt to show here.

In the first case, L.P. v. Centre intégré de santé et de services sociaux de l'Outaouais,4 the request was for [Translation] "... all fees paid to the law firm Bastien, Moreau, Lepage in relation to bargaining of local matters in the collective agreements... of the public body's three unions...". The CAI concluded that the information that could be released included [Translation] "the heading 'Local bargaining'" and "the amount corresponding to the total fees for that service".

In the other case, P.M. v. Loto-Québec,5 the CAI dismissed the application for review filed by the person who had requested access, the ultimate purpose of which was to gain access to the total amounts paid by Loto-Québec to a law firm in relation to two civil suits (still pending before the Superior Court at the time the access request was made, and even at the time of the decision, at the appeal stage).

Reasoning adopted

In its analysis, the CAI adopted the same approach in both cases. In order for information (here, the total amount of the fees paid) to be considered to be protected by solicitor-client privilege:

  1. it must be a communication between a lawyer and his or her client;
  2. it must involve consulting or obtaining a legal opinion; and
  3. the parties must consider it to be confidential.

In both of these cases, the CAI was of the opinion that requirements (1) and (3) had been met. For the second criterion, the CAI adopted the same analytical approach: there is a presumption of confidentiality, unless the person requesting access rebuts that presumption, which, in fact, that person has the burden of doing. However, the person who made the request may discharge that burden without necessarily having to introduce actual evidence. In the opinion of the CAI, information may be shown not to be protected by professional secrecy using logical arguments derived from the case. This is interesting but potentially problematic: if evidence is adduced, the adverse party can attempt to respond to it; if the tribunal constructs a logical argument, it is difficult to "guess" what is or is not logical in the tribunal's eyes—other than by reading the decision. At that point, however, it is too late to respond to it or to introduce evidence that would rebut the perception, as logical as it may be at the outset.

In the Loto-Québec case, the CAI concluded that information protected by professional secrecy could be disclosed if the total amount of the fees in the pending cases was disclosed. Undoubtedly, the fact that these were related to litigation cases and that they were still pending at the time of the access request carried some weight in the final outcome. The courts are accustomed, and even are more inclined, to identify and protect communications between a client and his or her lawyers when they take place in the context of litigation. Even the total amount of the fees may fall under the umbrella of privilege: the fees could disclose the efforts that a client is prepared to make, or not make, to defend its interests. Allowing access to lawyers' accounts would amount to providing a way of deducing the organization's level of commitment to the proceedings undertaken. The protection afforded by professional secrecy is therefore granted.

In Centre de santé et de services sociaux de l'Outaouais (the "Centre"), however, the CAI did not reach the same result. Under the Act Respecting the Process of Negotiation of the Collective Agreements in the Public and Parapublic Sectors,6 the national parties have a mandate to enter into agreements with financial and monetary impacts. The regional parties have responsibility for negotiating all local matters provided for in the Act. The Centre had retained a law firm to assist in negotiating local matters. In the opinion of the CAI, the advice of the lawyer on pure business matters is not covered by solicitor-client privilege; that type of service is not covered by section 128 of the Act respecting the Barreau,7 which sets out the acts that are the exclusive prerogative of lawyers. There is one problem: while, undeniably, not all acts performed by a lawyer fall within the practice of law and are covered by professional secrecy, the Supreme Court of Canada did point out, in Foster Wheeler Power Co. v. SIGED,8 that "[a]ny solution must also take into account the evolving nature of the legal profession, in which lawyers are increasingly called upon to provide services in fields well beyond their traditional sphere of practice" (para. 33) and that "[w]e must also bear in mind that lawyers' functions and professional qualifications have evolved dramatically" (para. 36).

We do not know the details of the services performed by the firm retained by the Centre; the decision of the CAI (rightly) does not describe them. However, the result raises questions: lawyers practise in various areas of the law, not just litigation. Often, their strategic advice falls within the confines of both law and business. The question arises of how to distinguish what falls within the area that the CAI called [Translation] "pure business matters" from matters that are not purely business. After all, the client would like to ensure that its business interests coincide with the legal situation. The first does not work if the second is not taken into consideration, and surely what distinguishes good advice from excellent advice is a dependent on the legal advisor's knowledge of his or her client's business situation. The question becomes one of whether the protection of professional secrecy will depend on the category of the law in which the advice is provided. A lawyer who is involved in a case will give advice based on his or her client's business situation; the legal services provided in that context could very well be protected from disclosure, including disclosure of the amount of the lawyer's fees. The question is whether the client of a lawyer who acts as a transactional advisor will be accorded a sphere of protection that differs from what is given in the case of the lawyer's litigation colleague.

Conclusion

The two decisions examined here were made under the Access Act, but, in our opinion, their implications go beyond the more immediate sphere of the right of access to the accounts of outside counsel retained by a public body.

Foster Wheeler invites us to make a distinction based on what services are performed by a lawyer and the capacity in which the services are provided. We agree, but there is a difference between the examples used by the Supreme Court of Canada to support its reasoning in Foster Wheeler (e.g. a lawyer who is a government employee, who gives advice on policy matters that have nothing to do with the lawyer's legal training or expertise and are based, rather, on his or her knowledge of the ministry concerned) and the case of a lawyer whose advice to an employer or investor is based on the client's business situation.

To come back to a concern stated earlier regarding the approach taken, of concluding that professional secrecy applies (or not) based on logical arguments derived from the case (and not necessarily from the evidence introduced by witnesses), it is our opinion that caution is called for. Before taking this step, particularly where the party seeking information that might be covered by professional secrecy has introduced no evidence, the tribunal should give the party who enjoys the benefit of professional secrecy an opportunity to make submissions concerning the tribunal's "perception" that the privilege applies (or not). It may be that some clarification could then be provided as to the real nature of the services performed by the lawyer, from a perspective that takes into account the evolving nature of the legal professions. That would undoubtedly enable the tribunal to have the best possible "evidence" for deciding, in full possession of the relevant information, whether the situation calls for genuine protection of professional secrecy based on the professional act in question, rather than on a category of the law in which the legal advisor practises. After all, that is surely the essence of a contextual and evolving interpretation of the law.

Will the forthcoming decision of the Court of Appeal in Commission scolaire des Patriotes v. Quenneville9 answer our questions? The judgment of the Superior Court in that case confirms the presumption that lawyers' accounts are protected, subject to evidence to the contrary. However, the interest of the two recent decisions of the CAI discussed in this bulletin lies in the factors from which the tribunal may infer such evidence. To be continued ...

Footnotes

1 Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

2 Charter of human rights and freedoms, CQLR c. C-12.

3 CQLR c. A-2.1.

4 2017 QCCAI 78.

5 2017 QCCAI 77.

6 CQLR c. R-8.2.

7 CQLR c. B-1.

8 [2004] 1 S.C.R. 456.

9 2015 QCCS 4598

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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