|For immediate release||October 19, 1999|
Law Society to stress lawyer-client relationship in Guess appeal
VANCOUVER – The Law Society of British Columbia announced today that it will seek leave to intervene in the appeal of R. v. Guess. In a 1998 jury trial, Ms. Guess was found guilty of obstruction of justice in the murder trial of Bindy Johal, Peter Gill and four other accuseds. Ms. Guess is appealing the verdict on a number of grounds, including that the invocation of court proceedings which bar an accused from attending her own trial and which prevent defence counsel from discussing matters with the accused, or conducting investigations of information received, have a serious impact on a person’s right to a fair trial. (For more information, please see CA024990 Vancouver Registry filed August 24, 1998, #504-#510.)
As an intervenor, the Law Society will stress the need to preserve the fundamental duty of undivided loyalty owed by a lawyer to his or her client. Lawyers have an ethical mandate to give full and complete disclosure of potentially relevant information to their clients. As officers of the court, lawyers also have a professional responsibility to cooperate with the court and assist in its work.
The Law Society was asked by Ms. Guess’ former lawyers to intervene in the appeal on the grounds that lawyers should not be ordered by the court to withhold potentially relevant information from their clients without proper consideration and process, as doing so may undermine the basic tenets of the lawyer-client relationship.
"Ordinarily, lawyers owe their clients a duty to disclose to them all relevant information that they become aware of during the course of representation," said Law Society President Warren Wilson, QC. "However, there have been circumstances when non-disclosure of information in a trial is appropriate and possibly in the best interests of the client. But there needs to be a proper process in place to ensure that such actions do not improperly interfere with the lawyer-client relationship. The Law Society is intervening in this case to assist the court by suggesting a process that can be used in future trials."
"It may be appropriate, in certain circumstances, for the court to permit a lawyer to have access to sensitive information, but only on the lawyer’s undertaking that it not be disclosed to the client," said Wilson. "Such a procedure, however, should be followed only when it is absolutely necessary in striking a balance among the competing interests involved, and then only after the client has consented to the procedure by specifically instructing counsel to receive the information on those terms. The Law Society intends to suggest this process to the court."
By intervening in this appeal, the Law Society is not taking a position on whether the appeal should be allowed or dismissed. The Law Society takes no position in that regard.
With over 9,800 members, the Law Society of British Columbia is the governing body for the BC legal profession. Its chief executive officer is the Executive Director, and its senior elected official is the President. The Benchers are members of the Board of Directors. The Law Society’s principal responsibility is to uphold and protect the public interest in the administration of justice and set standards for the education, professional responsibility and competence of practising lawyers in the province.
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Note to Editors: Two documents follow:
- Law Society backgrounder
- Copy of Affidavit filed with BC Court of Appeal, seeking leave to appeal in Gillian Guess v. Regina. Vancouver Registry No. CA024990
For more information contact:
Elizabeth Cordeau, Public Affairs Manager
604-443-5724 or 1-800-903-5300 toll-free in B.C.
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What is the Law Society of BC?
The Law Society is the independent governing body of the BC legal profession. It gains its authority from the Legal Profession Act. The Law Society’s mandate is to protect the public interest in the administration of justice and regulate the practice of law and the conduct of lawyers in BC. Powers and obligations are delineated in the Act, the Law Society Rules and the Law Society’s Professional Conduct Handbook. For more information, please see:
- Section 3, Legal Profession Act public interest mandate
- Law Society Professional Conduct Handbook regarding a lawyer’s duty to the court and to the client (see Chapter 1)
- Law Society Professional Conduct Handbook regarding the solicitor-client relationship (see Chapter 5)
Why is the Law Society intervening in this appeal?
The Law Society must ensure that lawyers practise law competently and ethically. The lawyer-client relationship calls for a lawyer’s undivided loyalty to the client and is integral to maintaining the fairness of our justice system. The Law Society is seeking to intervene in the appeal only to suggest a process whereby the lawyer-client relationship can be preserved without interfering with the goals of the court.
Is the Law Society taking a position in the Gillian Guess case?
No. The Law Society is taking no position or role on the issues of substance in the appeal and has no interest in the outcome of the appeal. The Law Society’s role as an intervenor is to suggest a proper procedure for preserving the integrity of the lawyer-client relationship to the fullest extent while ensuring that lawyers cooperate with the court.
Why is open communication between a lawyer and a client so important?
Everyone has a right to a fair trial and fairness calls for undivided loyalty by a lawyer to his or her client. A lawyer must communicate fully with his or her client; the dialogue between the two must be open, honest and complete. Without this trust, it can be difficult to act completely effectively, which could compromise an accused’s right to a fair trial.
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COURT OF APPEAL BETWEEN:
GILLIAN GUESS (APPELLANT)
A F F I D A V I T
I, Jeffrey Glenn Hoskins, Barrister and Solicitor, of 845 Cambie Street, in the City of Vancouver, in the Province of British Columbia, MAKE OATH AND SAY AS FOLLOWS:
1. I am General Counsel for the Applicant, the Law Society of British Columbia and as such I have personal knowledge of the facts and matters hereinafter deposed to, save and except where the same are stated to be founded upon information and belief, and, as to such facts, where so stated I verily believe the same to be true.
2. The Law Society is a society continued under s.2 of the Legal Profession Act, S.B.C. 1998, c.9, which has been given the following responsibilities under s.3 of that Act:
"(a) to uphold and protect the public interest in the administration of justice by
(i) preserving and protecting the rights and freedoms of all persons,
(ii) ensuring the independence, integrity and honour of its members, and
(iii) establishing standards for the education, professional responsibility and competence of its members and applicants for membership, and
(b) subject to paragraph (a),
(i) to regulate the practice of law, and
(ii) to uphold and protect the interests of its members."
3. On November 4, 1998 the Law Society received a written request from the solicitors who were then acting for the Appellant herein inviting the Law Society to seek leave to intervene in this Appeal in connection with the first three grounds of appeal set out in the Notice of Appeal.
4. Those grounds were said to raise issues that were of concern to the public and to the legal profession, inasmuch as they relate to an order of the Learned Trial Judge which appeared to interfere with the relationship between a lawyer and his client, particularly by requiring that Defence Counsel not disclose potentially-relevant information to his client.
5. Such an order arguably contravenes the lawyer’s professional, fiduciary duty to disclose to the client all relevant information of which he or she becomes aware during the representation. That duty is imposed by law and is also reflected in the British Columbia Professional Conduct Handbook, particularly Chapter 6, paragraph 1 (the duty of undivided loyalty) and Chapter 3, sub-paragraph 3(k) (the duty to provide quality service, as measured, among other things, by the extent to which the lawyer "discloses all relevant information to the client ...").
6. The Law Society has considered this request and has concluded that it would be in the interests of the public and the legal profession to intervene in this appeal in order to address the issues raised by the first three grounds of appeal. The Law Society believes that those interests may not be identical to the interests represented by the current parties to this Appeal and that the Law Society can therefore present this Honourable Court with a unique and valuable perspective.
7. The Law Society is concerned in particular that the orders that are the subject of the Appeal herein interfered unnecessarily with the relationship between Defence Counsel and his client. The Law Society’s position is that while it may be appropriate in certain circumstances for Defence Counsel to be privy to information on the basis that it not be disclosed to the client, that result should be achieved by having counsel seek instructions from the client to give an undertaking not to disclose the information, rather than by making an order unilaterally (with no input from the client), as was done in this case; in the absence of such instructions and such an undertaking, no information should be provided to Counsel.
8. The Law Society’s intended position, as outlined above, may differ from those which will be advanced by either of the current parties to this Appeal. That position does not lead inexorably to any particular result respecting the ultimate disposition of this appeal and the Law Society would therefore take no position in that regard if it received leave to intervene.
|SWORN BEFORE ME at the City of Vancouver, in the Province of British Columbia, this 23 day of September, 1999|
|[signed by Jeffrey Glenn Hoskins]
|A Commissioner for taking Affidavits for British Columbia||Jeffrey Glenn Hoskins|