The independence of the Bar.

The question I want to address this morning is whether the judicial branch of government can meet the requirements of a free society without an independent bar. I submit that it cannot.

The principle of an independent bar, like the principle of an independent judiciary, is an idea that has a fundamentally constitutional character. This is so because where it is interfered with all other constitutional rights including the rule of law itself are placed in jeopardy.

It is simply inconceivable that a constitution which guarantees fundamental human rights and freedoms should not first protect that which makes it possible to benefit from such guarantees, namely every citizen's constitutional right to effective, meaningful and unimpeded access to a court of law through the aegis of an independent bar.

The point about access was made by the Supreme Court of Canada(1) when it unanimously affirmed the grant of an injunction by Chief Justice McEachern on his own motion enjoining interference with access to the courts of the province by picketing.(2) Speaking for the court, the late Chief Justice Dickson put it this way:

   Of what value are the rights and freedoms guaranteed by the Charter if a
   person is denied or delayed access to a court of competent jurisdiction in
   order to vindicate them? How can the courts independently maintain the rule
   of law and effectively discharge the duties imposed by the Charter if court
   access is hindered, impeded or denied? The Charter protections would become
   merely illusory, the entire Charter undermined.

      There cannot be a rule of law without access ... (3)

While a court of law worthy of the name is impossible without an independent judiciary, meaningful access and the effective use of such a court is impossible without an independent bar. In the result, both an independent bar and an independent judiciary are necessary to maintain and preserve the supremacy of law.

There are three points that I want to elaborate.

First, that the independence of the bar is a constitutional principle.

Second, that the right to an independent bar is a constitutional right that belongs not to the lawyer but to each individual citizen. It no more belongs to a lawyer than the constitutional right to an independent judiciary belongs to a judge. It is a fundamental right of the entire community.

Third, that currently the independence of the bar faces a most serious challenge in this country and around the world from statutory provisions designed to combat money-laundering.

I turn first to independence. Under the Legal Profession Act of this province the first duty of the Law Society is, in the language of the statute:

   ... to uphold and protect the public interest in the administration of
   justice by ... ensuring the independence, integrity and honour of its
   members ...(4)

This independence means the independence of the lawyer from the whole world saving only his client. The classic statement of it is found in the great speech of Lord Brougham in 1820 when he was representing Queen Caroline in answer to a Bill of Pains and Penalties sought by George IV in order to divorce the Queen on the ground of her alleged but barely contestable adultery. In his speech Lord Brougham said:

   I once before took occasion to remind your Lordships, which was
   unnecessary, but there are many whom it may be needful to remind, that an
   advocate, by the sacred duty which he owes his client, knows in the
   discharge of that office but one person in the world--that client and no
   other ..., nay, separating even the duties of a patriot from those of an
   advocate, and casting them if need be to the wind, he must go on reckless
   of the consequences, if his fate it should unhappily be to involve his
   country in confusion for his client's protection.(5)

By referring to his duty if necessary to involve his country in confusion, Lord Brougham was signalling to George IV that he was prepared to put in evidence the King's secret marriage to Mrs. Fitzherbert, a Roman Catholic. He was telling the King that if need be, he would dispute the King's title to the throne and show that the King had forfeited the crown.

Apparently the King got the message because the Bill was abandoned.

In substance, therefore, the idea of lawyer independence involves a commitment of undivided loyalty and allegiance to the client free from all conflicting interests. This commitment is so strong that it cannot be waived even by the client and it includes the obligation to keep the client's secrets.

The latter consideration is at the bottom of the evidentiary rule giving the client a privilege that prevents a court compelling the disclosure of confidences imparted to the lawyer in order to seek and obtain advice. It must be stressed that although such a privilege is of great significance (to which I will come in a moment), it nonetheless is one that springs from the broader right of the client to the undivided and nonwaivable loyalty of the lawyer, which requires complete lawyer independence.

It is important to understand the difference between the evidentiary rule of privilege and the principle of confidentiality. To begin, all information that is privileged is confidential; however, the reverse is not true. Not everything confidential is necessarily privileged. This is because all information acquired by a lawyer from and about a client in the course of the retainer is confidential while only the information directly related to seeking, formulating and giving legal advice is covered by the rule of privilege.

While there is therefore no evidentiary rule preventing judge-ordered disclosure of non-privileged confidential information, no judge ought to order it unless satisfied on the facts of a particular case that such disclosure can be made consistent with a constitutional guarantee of the independence of the bar. An order requiring such disclosure would be highly exceptional, to say the least.

Accordingly, all information covered by the principle of lawyer confidentiality, whether privileged or not, is constitutionally protected at least to the extent that legislation cannot validly require a use or disclosure of such information that violates the principle of the independence of the bar.

This is supported by the fact that it has long been recognized that the balance required by the proper administration of justice makes it essential that every citizen who encounters the daunting world of law has the right to count on the unfettered commitment of a lawyer, including complete confidentiality whether subject to the rule of privilege or not. This is impossible without a constitutional guarantee of the principle of the independence of the bar.

This brings me to the second point I wish to stress, namely that an independent bar is a constitutional right that belongs not to the lawyer but to each individual citizen. This is apparent from the nature of lawyer independence and the fact that it is made necessary by the public interest in the administration of justice.

The enormous importance of the citizen's right to an independent bar and the fact it is a right that must have constitutional rank is illustrated by an article entitled "The Bar in the Third Reich"(6) by the historian Kenneth C.H. Wellig. It is clear from his recital of events between 1934 and the end of World War II that the Nazis were determined to abolish the independence of the bar in Germany and to do it by abrogating the citizen's right to the allegiance of the lawyer and replacing it with the allegiance of the lawyer to the state.

In a free country, on the other hand, it must never be forgotten (as I fear it is all too often) that it is in the public interest that even the worst criminal should have counsel. It matters not if the client is Moriarty or Mother Teresa. In either case counsel cannot properly perform his or her duty without being able to learn the truth. To hold that lawyers may reveal information that they obtained by virtue of their professional employment would prevent the frank disclosure by the client that is necessary for the proper protection of the client's rights.

Thus the lawyer's duty includes maintaining the confidentiality not only of the information imparted by the client but everything learned about the client. This includes such prosaic details as the client's name, address and the very fact that he or she has retained the lawyer. It is an all-encompassing duty that includes but is not limited to the case where the rule of privilege ipso facto prevents judicial as well as legislative action.

It is also an extreme duty. This point is best demonstrated by an extreme case --the best test of a hard problem. Consider the case of the fugitive client who is a convicted serial killer. The client calls Geoffrey Cowper, Q.C. (the client may be a murderer but he has champagne tastes). In their conversation the client gives Cowper reasonable grounds for suspecting the client has committed a further murder. It is of course Cowper's duty to advise the client to give himself up. Cowper will also refuse to continue the retainer unless the client does give himself up. Cowper does this to avoid implicating himself in a crime--aiding a fugitive.

Nevertheless, everything Cowper has learned from the client must remain inviolate, whether covered by the rule of privilege or not. This includes not only the client's name but also his whereabouts. Further, Cowper would be in breach of his duty and liable to disbarment were he to report to the authorities his suspicion that it was his client who committed the most recent murder. This extreme duty is compelled by society's overriding interest in the proper administration of justice and indeed the preservation of the rule of law itself. The only exceptions relate to lawyer participation in crime and information relating to the commission of future crime which, if not disclosed, risks making the lawyer an accessory before the fact.

The point is that whenever a conflict arises between the proper administration of justice on one hand and the effective enforcement of the criminal law on the other, then, in a free society, the administration of justice must prevail every time.

Not much reflection is required to see that this duty of undivided and non-waivable fidelity requires the lawyer's complete independence. It is a duty that cannot be discharged and indeed would be meaningless if the client could not rely on the lawyer's unfettered commitment of such fidelity--free of all conflicting interests including the state's interest in the apprehension of criminals.

No one can practise law for very long without coming to appreciate how insecure and frightened clients can feel when facing a legal transaction or litigation, let alone a prosecution. That anyone should permit doubts to arise about the extent of counsel's commitment to clients' interests (and no other interests) is simply unthinkable. Nonwaivable and undivided loyalty on the part of the lawyer is the highest embodiment of that commitment.

Finally let me turn to the serious challenge to the independence of the bar presented by statutory provisions proposed to combat money-laundering.

Historically the greatest challenge to lawyer independence has invariably come from the state's assertion of priority for the enforcement of the criminal law. It has a facile popular appeal. Currently serious concern arises from some of the recommendations of the G7 countries' Financial Action Task Force on Money Laundering. There are 29 member states including Canada.

As a result Canada now has under consideration legislation that would require:

1. all lawyers in Canada to record and make regular reports to a government agency on all client financial transactions of a specified kind. The information the lawyer would be compelled to record and report includes the client's name, address and occupation as well as a statement of the source of funds furnished by the client. Compliance is to be enforced by the power to search a lawyer's office without a warrant and take copies of the lawyer's records; and

2. all lawyers to make a special report to the government agency when what they learn from a client affords reasonable grounds to suspect that a transaction is related to the commission of a money-laundering offence. Further, the lawyer is barred from disclosing to the client the fact that such a report has been made.

In the words of a well-regarded Vancouver television journalist, Bill Good:

   Not only is the lawyer required to become an agent of the government, he is
   required to become a secret agent.

While the proposed law purports to contain machinery exempting communications subject to the rule of privilege, the framers of the statute do not seem to appreciate the distinction I have referred to between the rule of privilege and the principle of confidentiality. In particular, there is a failure to appreciate that the lawyer's duty of loyalty requiring complete independence is not limited to the rule of privilege but extends to everything the lawyer learns about the client. In the result these "secret agent" provisions are the antithesis of a lawyer's duty because they are calculated to leave the client with the false impression that the lawyer is meeting his duty while in fact he is betraying it.

I say that legislation imposing such requirements upon lawyers is unconstitutional because it abrogates the independence of the bar. It does so by replacing the allegiance of the lawyer to the client with the allegiance of the lawyer to the state.

Can any law society meet its statutory and constitutional obligation to maintain the independence of the bar while at the same time advising its members that it must comply with such unfortunate measures? Could any law society in the discharge of its duty even recommend compliance without first testing the constitutionality of such legislation?

It is particularly noteworthy that the bar of Germany has vehemently opposed a similar European Union directive. The German bar stated that it was appalled at the prospect of the enactment of such legislation. Germany has been joined by the bars of Switzerland, Austria and the Netherlands. Their presidents issued a joint statement in Berlin declaring:

   Not even totalitarian dictators have asked law firms to do this. A
   citizen's right to absolute confidentiality from [his or her] law firm is a
   basic fundamental legal right.(7)

An Irish lawyer, John Fish, vice-president of the overarching Council for Bar and Law Societies of Europe, also supported the German position. The European Association of Lawyers has passed a resolution similar to the joint statement quoted above.

One dramatic way such laws operate to interfere with the availability of counsel is illustrated by the comment of a senior and widely respected criminal lawyer who also, as it happens, is a bencher of the Law Society of British Columbia. He told me that if he made a report on some of his clients where he had grounds to suspect they had been engaged in the commission of an offence, all of his children would be murdered and his wife raped before she too was murdered.

The German bar is right to be appalled. Law societies across this country are starting to wake up to the implication of these provisions and it can be expected that they too will vehemently oppose them. It may be significant that the Canadian provisions were sponsored in Parliament not by the Minister of Justice but by the Minister of Finance and the Solicitor General who is responsible for the police.

It is to be hoped that the good offices of the Minister of Justice will ensure that no constitutional challenge ever becomes necessary. Indeed, it is to be hoped that, like George IV, the entire government will get the message (inherent in the Act of Settlement of 1701) and abandon these provisions.

In the unhappy event any such a challenge is necessary it would invoke the specific Charter guarantee of security of the person in section 7, which the Supreme Court of Canada has held to be the repository of a residual right to counsel.(8) It would also invoke the guarantee against unreasonable search and seizure in section 8 as well as the specific guarantee of the right to counsel in section 10(b).

I should also note that section 8 was the basis for a recent decision of the Alberta Court of Appeal(9) and a British Columbia trial court(10) striking down Section 488.1 of the Criminal Code, which, in language almost identical to the money-laundering provision, purports to exempt information subject to the rule of privilege where claimed in accordance with the section. One of the reasons a search of a lawyer's office was held to be contrary to section 8 in these cases was that a prerequisite to a claim of privilege in accordance with the impugned section was that the lawyer would have to disclose the name of the client. In the result the exemption was unavailable unless the lawyer violated a confidence that was covered by the principle of confidentiality but not necessarily by the rule of privilege. These cases can be said to recognize that the constitutional protection against unreasonable search and seizure in these circumstances rests on a broader foundation than the evidentiary rule of privilege alone.

More important and more fundamental than any of these specific provisions of the Charter is the overarching principle that renders unconstitutional any measure which undermines the administration of justice by abrogating the independence of the bar.

Let me close with the words of a great counsel, Thomas Erskine, which seem to me to be as apt now as they were on the day he addressed them to a jury:

   Arbitrary power has seldom or never been introduced into any country at
   once. It must be introduced by slow degrees, step by step, lest the people
   should see its approach. The barriers and fences of the people's liberties
   must be plucked up one by one, and some plausible [pretexts] found for
   removing ..., one after another, those sentries who are posted by the
   constitution of a free country, forewarning the people of their danger.(11)

The two most indispensable sentinels are the independence of the judiciary and the independence of the bar. At all costs they must be most jealously guarded.

ENDNOTES

(1.) B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.

(2.) Re B.C. Government Employees Union and A.-G. B.C. (1983), 2 D.L.R. (4th) 705 (B.C.S.C.)

(3.) Supra, note 1, at pp. 229-230.

(4.) Legal Profession Act, S.B.C. 1998, c. 9, at s. 3 (a) (ii).

(5.) Davenport, W.H., ed., Voices in Court (New York: The MacMillan Company, 1958), at p. 6.

(6.) Wellig, K.H., "The Bar in the Third Reich" (1976), 20 American Journal of Legal History 20.

(7.) "European Bar Leaders Unite Against Plans for Broader Money Laundering Reporting" (2000), 97 British Gazette 6.

(8.) Dehgani v. Minister of Immigration, [1993] I S.C.R. 1503 at 1576.

(9.) Lavalee v. Canada (2000), 184 D.L.R. (4th) 25 (Alta. C.A.).

(10.) Festing v. Canada, [2000] B.C.J. No. 527 (Q.L.) (S.C.)

(11.) R. v. Paine (1792), 22 How. St. Tr. 443.

(*) An address to the 1701 Conference on the Independence of the Judiciary, held in Vancouver, British Columbia, May 9-11, 2001.

Jack Giles, Q.C., is a senior civil litigation practitioner at Farris Vaughan Wills & Murphy who believes that chartered accountants can sometimes make acceptable expert witnesses but not appropriate partners for lawyers.