I couldn’t help being struck by the contrast between two seemingly unrelated events last week: Eddie Greenspan attacking his former client Conrad Black in the Globe and Mail, and the B.C. Supreme Court striking down money laundering laws insofar as those laws apply to lawyers.
In Federation of Law Societies of Canada v. Canada 2011 BCSC 1270, Madam Justice Gerow found that federal money laundering laws violate section 7 of the Charter to the extent that they apply to legal counsel and law firms. She further found that the violations could not be justified under section 1. Justice Gerow read down and severed those portions of the legislation that apply to lawyers and legal counsel. The Federation rode to this result on the strength of the sanctity solicitor-client privilege and of lawyers’ duty of loyalty to their clients.
In Saturday’s Globe and Mail, Eddie Greenspan was afforded a full page to rebut the attacks made against him by Conrad Black in his recently released memoirs A Matter of Principle. I read those memoirs cover to cover, and Mr. Greenspan has reason to be irked at how his former client has described him. Lord Black has many nasty things to say about most of his former lawyers, including Mr. Greenspan. This does not make Lord Black that different from many other dissatisfied clients. The difference of course is that Lord Black carries with him the power of the pen and of publication.
One can understand Mr. Greenspan’s desire to defend his honour and his reputation, but what of his duty of confidentiality to his former client? This became the subject of debate among legal ethics scholars across the country and (wonderfully!) among students as well. One of my former students now articling in Toronto e-mailed me: “Some articling student friends and I were discussing this and came across the issue of lawyer-client confidentiality. How does writing this piece comport with Greenspan’s duty to hold his conversations with Black in confidence? Did Black implicitly waive the privilege by writing about them in his book?”
A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.
The commentary explains that “[t]he duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”
On its face, the duty sounds absolute: “strict confidence” and “all information concerning the business and affairs of the client”. It is supposed to last forever. Lawyers aren’t supposed to talk about clients affairs to their spouses or their family. If this rule was applied literally, lawyers couldn’t talk about their cases at continuing legal education events and couldn’t write about them in books, as Mr. Greenspan does.
The reality is quite different from the rhetoric and it is difficult to reconcile with the lofty assertions of the sanctity of the confidence of communications between lawyer and client asserted by the Federation, the CBA and provincial law societies in so many cases, including its recent victory in the B.C. Supreme Court.
When a lawyer faces an allegation of any civil, criminal or regulatory (i.e. Law Society) misconduct, all confidentiality guarantees are out the window. The lawyer can use that confidential information to defend against allegations, whether or not it is the client who has made them. The breadth and the ease of the lawyer self-interest exceptions are very hard to mesh with the absolute nature of lawyer-client confidentiality propounded by Law Societies and bar associations in the courts. As Gavin MacKenzie has written, “The public may be forgiven for suspecting that the legal profession may not be free of self-interest.”
In the U.K., lawyers for Rupert Murdoch’s News of the World sought a waiver from their duty of confidentiality in order to discuss the legal advice that they gave in the phone hacking scandal. It does not appear that Mr. Greenspan felt compelled to seek any such waiver from Mr. Black. It is a debatable to what extent Mr. Black can be said to have implicitly waived his confidentiality rights by attacking Mr. Greenspan.
As lawyers, we have all had clients who have gone around and said nasty things about us and we often wish we could respond. However, few of us have clients like Conrad Black who write about us in a book and few of us have Mr. Greenspan’s access to the Globe and Mail’s pages. However, with the internet, irate clients can take to the internet and there are now entire websites like the U.K’s Solicitors From Hell devoted to client complaints against lawyers. How are lawyers to respond when they are caught between upholding the sacred trust of client confidentiality and protecting their own reputation?
Over the past decade, lawyers have convinced courts that the confidentiality of communications between lawyer and client and the duty of loyalty is so sacrosanct that government can rarely if ever override it. Lawyers should apply the same standard to their own interests and severely restrict the instances in which they override their duty of confidentiality to their clients.
While seeing Conrad Black and Eddie Greenspan go toe to toe in the pages of the press is certainly entertaining, ultimately lawyers should not engage in such “rebuttals” with former clients, whether in the Globe and Mail or on a website.