Disclosure and Privacy Task Force

Discipline rule changes – greater transparency over process, greater protection for privilege

The Benchers have adopted a number of rule changes recommended by the Disclosure and Privacy Task Force to clarify what discipline information can be publicly disclosed, to allow for more flexible dissemination of certain discipline information - such as through the Law Society website - and to provide specific protections for confidential, privileged and third-party information in the discipline process: see Parts 4 and 5 of the Law Society Rules as amended.

The Disclosure and Privacy Task Force, chaired by Second Vice-President Peter Keighley, QC, has worked steadily over the past year to provide the Benchers with policy options and recommendations "for balancing the Law Society's obligation to be open and transparent against the requirements of the law, considerations of privacy and the efficacy of the Law Society's duties under the Legal Profession Act."

In fulfilling this mandate, the Task Force plans to review disclosure and privacy issues in all major regulatory areas. The Law Society rules on the discipline process and hearings were reviewed first.

Publication of citations and hearing reports on the web

The amended rules allow publication on the Law Society website of both upcoming hearing dates and discipline citations. (Copies of Law Society citations and discipline hearing reports are currently available in hard copy form on request.) Privileged, confidential and third party personal information in the text of a citation will be removed prior to posting: Rule 4-16(4).

The Rules have also been amended to authorize publication on the Law Society website of the full text of discipline hearing reports and of admissions to the Discipline Committee under Rule 4-21. These documents will be posted on a "current reports" page in a new discipline section of the site for six months or until completion of all aspects of the penalty imposed, whichever is longer. The reports will then form part of a consolidated archive of decisions: Rule 4-48(4).

The new discipline section of the Law Society website is scheduled for introduction this Fall.

Anonymous publication orders

The lawyer's name is published as part of a hearing report, unless there is an order for anonymous publication of a case.

While the rules previously permitted a lawyer to apply for an order that a discipline decision not be published to the profession, there was no clear basis on which such applications should be granted, nor was there a clear rationale for distinguishing the circumstances in which a lawyer could apply for non-publication as opposed to anonymous publication (in which the lawyer is not identified). The Task Force was concerned that non-publication orders reduced the transparency of the Law Society's discipline process and restricted access to precedents. Under the new rules, non-publication applications are no longer available.

There will continue to be anonymous publication of discipline decisions in which all counts of a citation are dismissed, unless the lawyer wishes his or her name published: Rule 4-38.1(2). In all other cases, a discipline hearing panel has discretion to order anonymous publication only if two conditions apply: 1) the lawyer has not been suspended or disbarred, and 2) publication will cause grievous harm to the lawyer or another identifiable individual that outweighs the interest of the public and the Society in full publication: Rule 4-38.1(3).

Rule 4-38.1(4) now requires that an application for anonymous publication be made no later than 7 days after issuance of the panel report on fact and verdict.

Protection of confidentiality and privilege in hearings

As a means of ensuring the protection of privileged and confidential information in hearings, Rule 5-6(2) allows a hearing panel to order, by application or on its own motion, that a hearing or portion thereof be held in camera to prevent disclosure of personal, privileged or confidential information. Rule 4-27(5) has also been amended to require that such issues be discussed at pre-hearing conferences.

The Rules now allow public access to hearing exhibits, at the expense of the person making the request and subject to removal of privileged information or other information specified by the panel: Rule 5-7(2).

Rule 5-6(4) provides that no one is permitted to photograph, record or broadcast in the hearing room while a hearing is proceeding without the panel's permission, which may be given on conditions or restrictions.

The Benchers have also adopted guidelines for naming persons other than the lawyer in hearing reports. These guidelines are intended to help protect the identity of persons such as third parties who are not participants in the proceedings or clients (including complainants) who are witnesses where their evidence is highly personal or so intertwined with privileged or confidential information as to risk disclosure of that information. The guidelines will require the Benchers to consider what purpose will be served by naming a person in a hearing report and whether the use of initials or other identifiers would achieve the same purpose.

The revised rules can be found in the enclosed Member's Manual amendment package and on the Law Society website at www.lawsociety.bc.ca.