Is It OK for Regulators to Make a Mirror Copy of Files?

Lawyers’ Weekly reports that the Law Society of BC is considering whether it should be able to insist on doing a complete copy of a member’s computer in the course of an investigation. Pros and cons are discussed in the article, along with the proposed policy.

Concerns raised have included the lawyer/member’s privacy, and solicitor-client privilege.

Could not however the Law Society have sent in an investigator who would have had physical access to all the same files? Is the concern that once the mirror image is made, it is accessible to more people, with unknown controls?

In Ontario, the Law Society of Upper Canada can look at all a member’s files without regard to solicitor-client privilege (i.e. between the lawyer/member and the client – anything between the lawyer/member and his/her own counsel would be barred from the Law Society’s eyes). It sounds as if that may not be the case in BC.

Is this “right to mirror” a problem for you (in principle — I do not suggest you are about to be under investigation!)? Isn’t this the normal way an investigator preserves the files till review and, if necessary, prosecution? The article refers to one lawyer who managed to use “Erase Pro” on his files in a way that stopped the investigation for want of evidence. I would have thought that the person might then be subject to discipline for having incomplete files… but taking a mirror copy of the computer content as the first step of any investigation would help, would it not?

Someone in the article talks of cloud computing, and having one’s records on remote servers. Would this comply with implied or express requirements about having records subject to inspection? One could not refuse access to tax inspectors because one’s records were on some other server; one would have to make them available wherever they were and in whatever medium. Why would the obligations to a self-regulatory body be different?

In short, I’m not sure this is a big story, but some of the people that the Lawyers Weekly found think it is. Are they right?

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