It’s About Clients

February 26, 2015

By Brian Babcock

Lawyers are not special because we are lawyers. We are special because of our commitment to our clients. The Supreme Court of Canada repeated this in their recent decision exempting lawyers from many of the provisions in Canada’s money laundering regulations which might allow the government to peek behind the veil of solicitor-client privilege.

That privilege, remember, is the client’s privilege – the lawyer cannot decide when or if to waive the privilege. That is up to the client.

The duty of commitment to clients runs deeper. The Supreme Court refers to it as a basic tenet of our legal system, fundamental to the solicitor-client relationship and how citizens interact with the state. The lawyer’s duty of commitment to the legitimate interests of the client is said to be essential to maintaining confidence in the administration of justice. The Court recognizes that the expectation of privacy in dealings with your lawyer is very high in every situation – so those records of your corporate financing or house purchase are just as privileged as a meeting about a criminal charge. The Advocates’ Society, in its submissions to the Court, spoke of a “duty of loyalty”, but the Court purposely chose the stronger, if odd-sounding term “duty of commitment to the client’s legitimate cause”- a useful focus on what is most important, and how serious this duty remains.

Because of this, the government cannot impose restrictions or additional duties on lawyers that conflict with our duty of loyalty to clients – and perception is reality, so any restrictions that appear to limit our ability to effectively represent clients are invalid. Although there are situations where the police may seize lawyer’s records, they must first obtain a search warrant, and the records will be sealed until a judge decides any issues of privilege. This process differs from the powers of the bureaucrats of FINTRAC, who have broad powers of warrantless search and seizure. The Court says those powers do not apply to records kept by lawyers – because of our duty to our clients.

The Court also says that the extended record-keeping scheme in the regulations cannot apply to lawyers, as it undermines the confidence of clients in lawyers’ loyalty to the client rather than the state. Lawyers of course have a system of record keeping that does track clients’ funds, but a system designed by lawyers to protect clients is different from a system designed to serve state interests.

So, the next time you wonder why some lawyers cringe at lawyer jokes (except the really funny ones), remember that it is not about us – it is about you, about your rights, about your privilege, and about commitment to your cause.