Lawyers owe duties to clients in face of Securities Commission summons

Investigators appointed by the BC Securities Commission occasionally deliver to a lawyer a summons under s. 144 of the BC Securities Act. The summons may seek to compel the lawyer to give evidence on oath as a witness or to produce records pursuant to a Commission investigation of one of the lawyer's clients.

Section 148(1) of the Securities Act prohibits communication related to such summons as follows:

Without the consent of the commission, a person must not disclose, except to the person's counsel, any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined under section 143, 144, or 145.

Chapter 5, Rule 14 of the Professional Conduct Handbook sets out a lawyer's responsibilities when such demands are made:

A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.

On its face and unless the Commission consents to the contrary, s. 148 of the Securities Act prohibits a lawyer served with a summons under s. 144 from seeking instructions from his or her client on whether to claim privilege or whether the client wishes to waive privilege over any information the Commission seeks from the lawyer.

The Law Society has met with Commission representatives to discuss concerns about the application of section 148, in light of a lawyer's professional obligations under Chapter 5, Rule 14.

As a result of those discussions, the Commission has agreed to publish the following consent to disclose under s. 148 of the Securities Act:

Under s. 148(1) of the Act, the commission consents to a person's counsel disclosing to the person any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined under section 143, 144, or 145.

This Consent to Disclose [Section 148] took effect on October 7, 2003 and has been posted on the Commission's website under "Decisions & Orders / Exemption Orders" at www.bcsc.bc.ca.