Confidentiality and Clients

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?”

Rule 2.03 of the Law Society of Upper Canada’s Rules of Professional Conduct provides

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.

Comments

  1. m. diane kindree

    I am very glad you have commented on the ethical relativism of these two contrasting events. I concur that the professional issue in event #2 (Mr. Black vs. Mr. Greenspan) is one stemming from a course of professional conduct wherein, ethical subjectivism and objectivity of differing truths becomes emotivism. Is this a good or bad thing? Is this right or wrong given the unique circumstances in this case?Should the evaluations of the actions for accuracy and logical consistency,to the same issue, be protected under Free Speech? In contrast, this pales to the magnitude of concerns I feel about the B.C.SC striking down the money laundering laws that apply to lawyers. The court’s position highlights the ethical, moral and legal problems of applying imperfect duty, at will and under the law, in the lawyer-client relationship where differential treatment is sanctioned by the court. The CBA’s Code of Professional Conduct on Obligatory Withdrawal states: “4(a) if the lawyer is instructed by the client to do something inconsistent with the lawyer’s duty to the court or tribunal and, following explanation, the client persists in such instructions etc.;” Regrettably, I believe the B.C. SC has totally missed the point: upholding the law comes first and therefore, anyone engaging in white-collar criminal activity should be charged or the public will loose faith and confidence in the independence and impartiality of the Justice System.
    How can the public interest be ignored and this not be deemed discriminatory?
    Thank you for posting this important and thought provoking article.

  2. Prof. Dodek:

    In fairness to Mr. Greenspan, he specifically stated in the piece that he had Mr. Black’s written permission, albeit given before the book in issue came out, to deny the $2.2M retainer demand fabrication.

    Whether Mr. Greenspan’s skin was too thin on this occasion, whether he ought not to have wallowed in the mire with Mr. Black, otherwise – on Mr. Black’s allegations that Mr. Greenspan did not provide adequate legal representation – is a different issue. My view – I expect others will disagree – is that this forum, in its current guise, is not the place for such a discussion. Part of my reason for that view is that people are able to comment anonymously.

    Best regards,

    David Cheifetz

  3. A review of Conrad Black’s CV leads one to notice a longstanding ambition to be an éminence grise, to wear the “noblesse de robe” and to chase a buck. Not necessarily in the same order at all times. Greenspan strains credulity at his seeming surprise over his treatment in Black’s latest tome ‘Matter of Principal’ (sic). Dodek tries to bring some basic principles into the discussion. Kindree seems to believe that the law always brings justice, but that issue was on trial at Nuremberg – the court officials indicted were not found innocent. Chefeitz is upset over anonymity perhaps forgetting that over the centuries (history teaches) many persons have had power spoken to truth.

    In a more lighthearted vein the following case might spread some light: Pearse v. Pearse (HIGH COURT OF CHANCERY) (1846) 1 De G & Sm 12 Vice-Chancellor Knght Bruce opined that:

    “The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination …”

    “Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much. And surely the meanness and the mischief of prying into a man’s confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, easiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.”

  4. Rick, I have taken the liberty to re-phrase your statement into a question. How do I view the relationship between the law and justice?
    Are the law and justice synonymous?

    The law is an instrument of achieving justice akin to a social regulator. I define justice as “the constant and perpetual will to allot to every man/woman/child, his or her due”. For the record, I know the law and the truth don’t always bring justice. That is exactly why I exercise my democractic rights to speak out on this very subject whenever I can.

    One of the most important roles of the law is the equal application of the law to all. Lawyers are officers of the court and administrators of the justice system, advocates for their clients and must not knowingly assist in any crime, fraud or illegal conduct.

    I think you have made a valid point that the price of truth-telling or truthercising; whether to confess, to sell, to promote, to argue, to entertain, to defend, to emote, to control, etc. is a power entity which we may no longer hold in reverence because just too many high profile people have been caught telling lies. Once again, the law has imposed few limits on your freedoms to choose what role the truth will play in your life.

    How would I characterize this “toe to toe” encounter in print?
    I say, no laws have been broken so let each interested reader choose which actor is more credible and trustworthy. I wonder if the CRA and IRS will be calculating their share of this well documented performance?