[31] Turning to the issue of whether the Disclosed Information was confidential, it was argued by counsel for the Respondent that no client information of a truly confidential nature was disclosed, and if it was, it was not harmful to the clients.
[32] It was argued that the disclosed discussion with CD on strategy and evidence concerned steps and evidence that would be obvious to opposing counsel whether disclosed or not, and that details about brain injury and poor financial condition were irrelevant and would not be harmful to the clients nor helpful to the opposing party in the Misrepresentation Action. He submitted that, because the clients’ case was so strong, it could be resolved with a simple summary judgment application, and poverty on the Plaintiff’s part would not bar a successful outcome.
[33] The Panel disagrees, and observes that, when a defendant learns that the plaintiffs are not on a contingency arrangement with their lawyer, are unable to pay their lawyer, and are on the brink of having to sell their home to pay medical bills, such information can be very useful to a defendant. Such a defendant might wish to stall proceedings or complicate them with expensive interlocutory applications in order to wear down the plaintiffs and perhaps gain a cheaper settlement.
[34] The Respondent disclosed that GW was retired despite his pleading in the Personal Injury Action that GW was “a communications specialist,” a disclosure that, if it fell into the hands of the defendant in the Personal Injury Action, might cause GW some embarrassment or loss of credibility.
[35] The Respondent disclosed that CD had a brain injury, information that might be used by the defendant in the Misrepresentation Action to their benefit in the course of cross-examining the Respondent as to her credibility and memory, or in the course of negotiating with her.
[36] By attaching the email from his clients in which they detail their poor finances, poor health and despair and by criticizing their diligence in providing him with needed documents and evidence in the Personal Injury Action, the Respondent disclosed to the defendant in the Misrepresentation Action information about his clients’ vulnerability, attitude, mood and resolve, all of which would be potentially harmful to his clients and helpful to that defendant.
[37] By detailing so much information about his clients’ Personal Injury Action, the Respondent ran the risk that his affidavit might somehow fall into the hands of the Personal Injury Action defendant, even though the affidavit was only filed in the Misrepresentation Action.
[38] The scope of confidentiality was considered in Law Society of BC v. Welder, 2013 LSBC 24, in the context of conflict of interest. The hearing panel noted that the term does not just include information contained in documents, but it extends to less tangible information such as the client’s attitude, approach to litigation and vulnerabilities.
[39] The Panel finds that the Disclosed Information was confidential client information.
[40] The leading case on this topic is the Supreme Court of Canada decision in R. v. Cunningham, 2010 SCC 10, [2010] 1 SCR 331, where, at para. 47, the court says
If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.
[41] The court went on to say, at para. 50, that
[i]f withdrawal is sought because of nonpayment of legal fees, the court may exercise its discretion to refuse counsel’s request. The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
whether it is feasible for the accused to represent himself or herself;
other means of obtaining representation;
impact on the accused from delay in proceedings, particularly if the accused is in custody;
conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
impact on the Crown and any co-accused;
impact on complainants, witnesses and jurors;
fairness to defense counsel, including consideration of the expected length and complexity of the proceedings;
the history of the proceedings, e.g., if the accused has changed lawyers repeatedly.
As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.
[42] The Cunningham case effectively overruled earlier decisions such as Wilson v. Ina Insurance Co. of Canada, (1994) BCJ No 829 (SC), Ely and Rosen (1963) 1 OR 47, and Luchka v. Zens, (1989), 37 BCLR (2d) 127 (CA), all of which prescribe a more proactive role for the court. At para. 8 of the Luchka decision, the permissive language of the then Rule 16(4) is noted (“the court may declare ...”) and the court ruled that “… until an issue is raised between the retiring solicitor and one of the other parties or his own client, the court is not called upon to investigate the matter critically. There is no issue raised to be investigated.” This language invites the court to explore the reasons for withdrawal when “an issue is raised,” a principle rejected, or at least severely restricted, in the Cunningham decision.
[43] Although the Respondent testified before us that he read the Cunningham decision carefully before drafting his affidavit, in his letter to the Law Society dated March 6, 2013 in response to the complaint, he cites as his authority for the disclosures made in his affidavit the aforesaid overruled Ely, Wilson and Luchka decisions but does not mention the Cunningham decision.
[44] The Respondent testified before us that he then believed that one of the “timing issues” referred to in Cunningham would be his own need to get off the record and collect his fees, and that is why he interpreted Cunningham as obliging him to go into factual detail about why he ought to be removed as counsel.
[45] The Panel rejects this as a competent or reasonable interpretation of Cunningham and finds that the Respondent ought to have concluded that the exceptions noted in Cunningham all have to do with the administration of justice, and not with his own fee collecting process. There were no pressing circumstances in the Misrepresentation Action, no impending applications, no trial date set, no urgency, none of the factors cited in Cunningham that would impact the administration of justice and require him to provide reasons, facts and documentary evidence supporting his application to be removed for non-payment of fees. The Respondent did not understand, did not read or ignored Cunningham when he drafted his affidavit.
[46] If the Panel is wrong and the Respondent did reasonably interpret Cunningham as authority for the need to disclose details and evidence on his application, the Panel finds that the extent and nature of the Disclosed Information went far beyond what would have been required if an “administration of justice” issue in fact existed. Why did he not simply state that he had been terminated as solicitor on one file, was unpaid on both files, and wished to proceed with collection procedures, which would put him in conflict if he continued to act on the other file? Why did he disclose medical conditions, strategy discussions, work he had done in the actions, a revealing letter from his clients, and the current employment status of his client? None of that was necessary by any reading of any of the above cases, either before or after Cunningham.
[47] Counsel for the Law Society put to the Panel cases on the distinction between applying to be removed as counsel because of unpaid fees and applying because of ethical issues, cases that establish that, once counsel advises the court that an ethical problem exists, the court must grant the order, and supporting material is never required. Law Society counsel argued that the facts of this case indicate an ethical justification for being removed, because the unpaid fees and the Respondent’s wish to pursue collection would put him in conflict if he still acted on the Misrepresentation Action. It was argued that this made his reason “ethics based” and he ought not to have adduced any evidence on his application. The Panel does not accept that argument, and agrees with Respondent’s counsel that a lawyer ought not to try to dress up a fee dispute as an ethical issue. While the fee dispute would lead to a conflict of interest if the Respondent was not allowed off the record, the core reason for getting off record was always the fee dispute.
[48] The decision in Sandhu v. Household Realty Corp., 2013 BCSC 192, was decided after the Respondent made his application. In that case Mr. Justice Burnyeat clearly adopted the reasoning in Cunningham quoted in para. [41] above and noted that “… the requirement that the court inquire is restricted to where timing is tight and adjournment might result.” To his credit, the Respondent told us during the hearing that, if the Sandhu case had been reported before he drafted his affidavit, he would have drafted it differently.
[49] The Respondent told us that, despite his client’s accusations that he had breached solicitor/client confidentiality during the hearing of his application, Justice Ross had agreed with him, approved his application procedure, not censured him and awarded him costs against his clients. It was argued on his behalf that some deference ought to be paid by this Panel to this decision of Justice Ross on the issue of the propriety of the Respondent’s affidavit.
[50] On reviewing the transcript of that hearing and the Order entered, and for the reasons set out in paragraph [22] above, the Panel finds it probable that Justice Ross made no comment or ruling on the alleged breach of confidentiality because she was told that it was to be dealt with in a proceeding at the Law Society.
[51] The Panel thus finds that the Respondent was not legally entitled to disclose the confidential client information that he disclosed, and that this disclosure constitutes a breach on his part of Chapter 5, Rule 1 of the Handbook.
[52] If the Panel is wrong in finding that the retainer agreement was not a binding contractual authorization by CD and GW for the disclosure of the Disclosed Information, then the Panel finds that the provisions of any such retainer agreement must be read in the light of and subject to applicable law and ethical obligations, and we find that the disclosure in this case was made in breach of both (Chapter 5, Rule 1 of the Handbook).
[53] Nowhere in the Legal Profession Act, Law Society Rules or the Professional Conduct Handbook is there any definition of or test for professional misconduct. The leading case is Law Society of BC v. Martin, 2005 LSBC 16, where the test is said to be “whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members.” The panel in that case stated the question as being, “The real question to be determined is essentially whether the Respondent’s behaviour displays culpability which is grounded in a fundamental degree of fault, that is whether it displays gross culpable neglect of his duties as a lawyer.”
[54] In Martin v. MacDonald Estate (Gray), [1990] 3 SCR 1235, the importance of preserving client confidentiality was discussed as follows:
Lawyers are an integral and vitally important part of our system of justice. It is they who prepare and put their clients’ cases before courts and tribunals. In preparing for the hearing of a contentious matter, a client will often be required to reveal to the lawyer retained highly confidential information. The client’s most secret devices and desires, the client’s most frightening fears, will often, of necessity, be revealed. The client must be secure in the knowledge that the lawyer will neither disclose nor take advantage of these revelations. (para. 61)
Our judicial system could not operate if this were not the case. It cannot function properly if doubt or suspicion exists in the mind of the public that the confidential information disclosed by a client to a lawyer might be revealed. (para. 62)
[55] In Law Society of BC v. Bjurman, 2009 LSBC 5, the lawyer had filed a caveat containing confidential client information against his own client’s property. He did so because of an earlier court order that allowed his client’s opposing party to file a certificate of pending litigation, and directed that any sale proceeds be paid to the lawyer’s trust account. The opposing party neglected to file a certificate, the lawyer learned his client was about to sell the property, and he was himself applying to be removed from the record as his fees were unpaid. The lawyer felt torn between his duties to his client to preserve confidentiality, his duty to the court to prevent a fraudulent sale of the property where the proceeds would not be paid into his trust account contrary to the order, and his wish to secure his unpaid fees. Although the lawyer admitted to professional misconduct, and it was not an adjudicated finding, that panel did note that “to disclose a client’s privileged or confidential information without consent is subversive to the privileged position of members of the legal profession ...”.
[56] In our case, the Respondent does not claim there were any such competing duties that led him astray. Nor is this a case where a lawyer accidentally disclosed a client confidence in the course of advancing the client’s interests in an action or transaction. The Respondent’s sole motivation in drafting his affidavit was to help himself be removed as counsel so that he could then start collection proceedings to collect his fees.
[57] A lawyer who sits down to draft an affidavit designed to advance his own interests, rather than his clients’, must take the utmost care to ensure that he is not breaching his duty of confidentiality to his client. The Respondent failed to do this, and the extent of the failure is considerable, given the amount and range of confidential information he disclosed, and given that much of it was both irrelevant and unnecessary to his application.
[58] Counsel for the Respondent advanced the argument that there was no evidence adduced of any harm to the Respondent’s clients as a result of the disclosure, but the Panel finds that his clients complained strenuously in their filed response to his affidavit, and in their oral submission to Justice Ross at the hearing. They thought his disclosure of their confidential information from an unrelated case was “highly improper” and that “he was operating quite outside what we would view as any type of established legal ethics.” The Panel agrees.
[59] The Respondent’s counsel submitted that we ought to consider the Respondent’s conduct as being a mistake, and referred us to the case of Re: Lawyer 12, 2011 LSBC 35, where there is a reference to the earlier decision of Re: Lawyer 10, 2010 LSBC 02, where it is said that, “It may not be professional misconduct if one’s conduct falls below the norm in a marked way if that occurs because of … b) an innocent mistake.” The panel in Re: Lawyer 12, however, went on to disapprove of that analysis in para. 8.
[60] Can the Respondent’s conduct be reasonably categorized as a mistake? With respect, the Panel disagrees and finds that, for the reasons set out above, and in particular in paragraphs [56] and [57], the degree of blameworthy fault and gross culpable neglect of the Respondent’s duties as a lawyer necessary to establish the conduct as professional misconduct has been proven by the Law Society, and we so find.
[61] Leaving aside any harm that his clients may or may not have suffered, the harm in this breach lies in the perception that GW and CD now have of the ethical standards of the Respondent, and possibly lawyers generally, and in the perceptions of those other members of the public who may hear their story.
[62] The Law Society of Upper Canada ruled in Law Society of Upper Canada v. A Member, 2005 CanLII 16408 (ON LST), that client harm or prejudice following a breach of client confidentiality is irrelevant to a determination of professional misconduct, and we agree. The harm is to the reputation of lawyers generally and to the public’s faith in the solicitor/client relationship, a relationship steeped in trust. In this case the Ontario member sent a letter to his clients explaining in detail why he would no longer act for them, which letter contained confidential client information, and he copied in the opposing lawyer, and that was found to constitute professional misconduct.
[63] The Panel does not say that every breach of confidentiality will necessarily lead to a finding of professional misconduct, but based on the facts found and the reasoning set out above, the Panel finds that the Respondent breached Chapter 5, Rule 1 of the Professional Conduct Handbook and that the breaches set out in allegations 1(a), (b), (c) and (d) of the Citation constitute professional misconduct.