Ethics Committee seeks comment from the profession
Model Code Rule 2.05(6) – Property relevant to a crime
When the Benchers adopted the new Code of Professional Conduct for BC (the BC Code) last March, they decided to consult with the profession about proposed Rule 2.05(6), which deals with lawyers’ obligations when they obtain possession of property relevant to a crime. The purpose of this article is to ask BC lawyers:
- whether it is appropriate to incorporate Rule 2.05(6) into the BC Code,
- whether some other criteria should make up such a rule, or
- whether no rule concerning this issue is preferable.
Rule 2.05(6) and commentary state:
Rule 2.05 Preservation of Clients’ Property
In this rule, “property” includes a client’s money, securities as defined in [provincial legislation], original documents such as wills, title deeds, minute books, licences, certificates and the like, and all other papers such as client’s correspondence, files, reports, invoices and other such documents, as well as personal property including precious and semi-precious metals, jewellery and the like.
(6) If a lawyer is unsure of the proper person to receive a client’s property, the lawyer must apply to a tribunal of competent jurisdiction for direction.
A lawyer should be alert to the duty to claim on behalf of a client any privilege in respect of property seized or attempted to be seized by an external authority or in respect of third party claims made against the property. In this regard, the lawyer should be familiar with the nature of the client’s common law privilege and with such relevant constitutional and statutory provisions as those found in the Income Tax Act (Canada), the Charter and the Criminal Code.
A lawyer is never required to take or keep possession of property relevant to a crime or offence. If a lawyer comes into possession of property relevant to a crime, either from a client or another person, the lawyer must act in keeping with the lawyer’s duty of loyalty and confidentiality to the client and the lawyer’s duty to the administration of justice, which requires, at a minimum, that the lawyer not violate the law, improperly impede a police investigation, or otherwise obstruct the course of justice. Generally, a lawyer in such circumstances should, as soon as reasonably possible:
(a) turn over the property to the prosecution, either directly or anonymously;
(b) deposit the property with the trial judge in the relevant proceeding;
(c) deposit the property with the court to facilitate access by the prosecution or defence for testing or examination; or
(d) disclose the existence of the property to the prosecution and, if necessary, prepare to argue the issue of possession of the property.
When a lawyer discloses or delivers to the Crown or law enforcement authorities property relevant to a crime or offence, the lawyer has a duty to protect the client’s confidences, including the client’s identity, and to preserve solicitor and client privilege. This may be accomplished by the lawyer retaining independent counsel, who is not informed of the identity of the client and who is instructed not to disclose the identity of the instructing lawyer, to disclose or deliver the property.
If a lawyer delivers the property to the court under paragraph (c), he or she should do so in accordance with the protocol established for such purposes, which permits the lawyer to deliver the property to the court without formal application or investigation, ensures that the property is available to both the Crown and defence counsel for testing and examination upon motion to the court, and ensures that the fact that property was received from the defence counsel will not be the subject of comment or argument at trial.
The way in which lawyers may treat such evidence continues to be a matter of controversy, particularly following R. v. Murray in Ontario in 2000, when lawyer Kenneth Murray retained tapes containing evidence of a crime for 17 months without disclosing the existence of the tapes to the Crown or court.
Some criticisms that have been made of subrule (6) are the following:
- It does not permit the lawyer to return the evidence to its source (usually the client). For example, a lawyer who interviews a client who is a suspect in a murder and who receives a bloody shirt from the client during the interview is not permitted to return the shirt to the client, even if the lawyer gives the client proper instructions about the client’s obligation not to destroy the evidence.
- It does not permit a lawyer to retain evidence temporarily for the purposes of testing.
- Unlike the position at common law, subrule (6) may require a lawyer to turn over documents to the court or the Crown or notify either that the lawyer is in possession of documents that might be relevant to a crime.
On the other hand, the absence of a single authoritative direction has been the source of considerable difficulty for counsel. Mr. Justice Gravely in Murray commented (at para. 149)
While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma.
Many articles and commentaries have been published on this issue and it has been the subject of case law in both Canada and the United States. Some discussion of the issues can be found at:
- R. v. Murray, 2000 CanLII 22378 (ON SC).
- Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline, Carswell 1993, pp. 7-8 to 7-12.
- Charles Wolfram, Modern Legal Ethics, West Publishing Co., 1986, p. 645.
- Christopher D. Clemmer, “Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel’s Conflicting Obligations to Clients and the Court,” Vol. 1, Issue 2, Osgoode Hall Review of Law and Policy 37.
- Law Society of Upper Canada, Report of Special Committee on Lawyers’ Duties with Respect to Property Relevant to a Crime or Offence.
- “Smoking Guns: Beyond the Murray Case,” The Criminal Law Quarterly, Vol. 43, Number 4, July 2000.
References to further articles can be obtained by contacting Jack Olsen below.
Lawyers are requested to send their comments by letter or email by December 31, 2012 to:
Staff Lawyer – Ethics
Law Society of BC
845 Cambie Street
Vancouver BC V6B 4Z9
Tel. direct: 604.443.5711
Toll free: 1.800.903.5300