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Iain Hunter: Lawyer-client privilege taken too far

I bet a lot of folks around here have been under the impression that what’s called solicitor-client privilege exists to protect clients. But they’ve been reminded, thanks to a decision by the chief justice of the B.C.

I bet a lot of folks around here have been under the impression that what’s called solicitor-client privilege exists to protect clients.

But they’ve been reminded, thanks to a decision by the chief justice of the B.C. Supreme Court, that it exists to protect lawyers, too. Robert Bauman, in a judgment released at the end of last month, showed that what lawyers call “the Privilege” denies access to lawyers’ bills and accounts, too.

Specifically, he denied access by auditor general John Doyle to $6 million in legal bills paid by B.C. taxpayers to defend two aides to Liberal cabinet ministers even after they pleaded guilty to breach of trust in connection with the sale of B.C. Rail.

Even NDP justice critic Leonard Krog, who wants a lot of questions answered about this deal, concedes Bauman’s decision “may well be correct on the law.” But then, he’s a lawyer.

I’m inclined to say, like Mr. Bumble in Oliver Twist, that if that’s the law, “the law is a ass — a idiot.”

Bauman cautioned all of us who have questions about this derailed court case not to conclude that his decision “represents the triumph of secrecy over transparency and accountability,” although that’s exactly what it does.

What it represents, he claimed, is “the reaffirmation of a principle which is a cornerstone value in our democracy” and “a critical civil right.”

Eh? This “law” was conceived in 16th-century England when Thomas Cromwell was knocking down monasteries and the law was what a king said it was.

The current president of the U.K. Supreme Court, Lord Neuberger, has said the privilege is “solely for the benefit of the client.”

In ruling last year that the privilege doesn’t extend to the relationship of clients to tax advisers or others offering legal advice, he said, stuffily, that lawyers are “held to higher standards than members of other professions.”

In a discussion paper prepared for the Canadian Bar Association last February, Adam Dodek of the University of Ottawa recorded how solicitor-client privilege has been elevated to a quasi-constitutional right today. Canada’s Supreme Court has recognized it as a principle of fundamental justice under the Charter of Rights.

Canada’s top court has also accepted that lawyer’s accounts are protected by the privilege, said Dodek.

Curiously, though, or not so curiously, what are called lawyers’ exceptions allow lawyers to reveal privileged information to defend themselves against charges of malpractice or misconduct “or to collect a fee.”

A former treasurer of the Law Society of Upper Canada, Gavin MacKenzie, has observed that sort of thing might lead the rest of us to suspect that “the legal profession may not be free from self-interest.” Mr. Bumble wouldn’t have been so polite.

I don’t know if lawyers in the East are more sensitive than ours, but the Ontario Bar Association launched a public-relations campaign last week to prove that lawyers are not, as a lot of folks seem to believe, a bunch of self-serving rogues and liars, but pillars of the community and paragons of virtue.

Dodek’s paper acknowledged something that has dominated, as it should, public debate here in B.C. since Doyle, like a pitbull brandishing a slide rule, went after the government’s “practice” of paying the legal fees of public servants in trouble with the law.

It noted that Parliament and the legislatures haven’t been able, on their own, to hold governments to account, so they’ve appointed officers like ombudsmen, ethics commissioners, budget officers and auditors general, like Doyle, to ask questions that might be awkward and demand documents that might be embarrassing.

“Public officials are concerned that providing privileged information to government bodies such as the auditor general may constitute waiver of the Privilege,” wrote Dodek. He said that though Parliamentary privilege prevails over solicitor-client privilege in theory, the Privilege “is still pre-eminent.” He sounded relieved.

It’s time our legislators showed some guts and put the privileged in their places. If the courts deny parliamentary officers the ability to show whether we received value for money when we paid off the B.C. Rail miscreants, only a public inquiry can serve the public interest.