In the balance: protecting personal records in an investigation

by Doug Munro, Staff Lawyer

The Law Society has a range of powers to investigate potential wrongdoing by lawyers. This includes the authority to copy records. Before computers, most of the records would have been on paper. When the Society’s investigators attended at an office, they would sift through the paper files and separate potentially relevant records from irrelevant records. Copies of the potentially relevant records would then be made to preserve the evidence and allow the investigation to proceed.

Computers have changed how lawyers practise law, how records are generated and stored, and how investigations proceed. It is becoming increasingly common to find that information exists only in digital form.

The Mirror Imaging Working Group was created in June 2008 to determine whether the Law Society needed new rules and policies to keep pace with the practice of law in the computer age. In particular, the Working Group was asked to identify how the Society can respect the reasonable expectation of privacy a lawyer during an investigation might have in personal information stored on a computer. On October 14, 2009, the Benchers adopted the Working Group’s report, Forensic Copying of Computer Records by the Law Society (PDF). The report is available on the Society’s website; see “Publications & Forms” at lawsociety.bc.ca.

computer disc with lock and chainBoth statute and case law make it clear that a “record” includes information contained on a digital storage device, and the storage device itself (such as a hard drive). What has also become clear is that there are unintended consequences that can result from the modern definition of a “record,” and while courts have analogized hard drives to filing cabinets, the two devices store information in fundamentally different ways.

Digital records are stored in bits of data on the storage device and information of all sorts is commingled. In practical terms, copying a digital storage device requires copying both relevant and irrelevant information, including irrelevant personal information. The issue came onto the Society’s radar when some lawyers subject to a Rule 4-43 order expressed concern that copying a computer hard drive would also involve copying personal information stored on the hard drive.

In British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, 1995, the Supreme Court of Canada recognized the unique relationship between regulatory bodies and the individuals they regulate. While the case focused on whether the investigatory functions of the Securities Commission violated sections 7 and 8 of the Charter, it established important principles regarding the reasonable expectation of privacy a member of a regulated profession has in records that are subject to inspection by the regulator. The court recognized that “the effective implementation of securities legislation depends on the willingness of those who choose to engage in the securities trade to comply with the defined standards of conduct” (para. 59). The court also expressed the opinion that “persons involved in the business of trading securities do not have a high expectation of privacy with respect to regulatory needs that have been generally expressed in securities legislation. It is widely known and accepted that the industry is well regulated” (para. 58).

While Branch was important to the Working Group’s analysis, it felt there was an opportunity to modernize the investigative approach to better address the concerns that arise when technology commingles personal information with business records. The Freedom of Information and Protection of Privacy Act and the Legal Profession Act authorize the Law Society to copy digital records and collect personal information as part of an investigation, but the Benchers believe the public interest is best served by providing clarity through revised rules and policies. It is possible to establish procedures that respect the reasonable expectation of privacy lawyers have in personal information that has been commingled on a computer record. These interests needn’t be incompatible, and proper rules and policies can ensure both interests are protected.

The Report contains a series of recommendations designed to achieve this balance. At present the Society is working on the rules and policies recommended in the Report. Some key highlights are sketched out below, but readers are encouraged to read the report for proper context.

The core of the report deals with suggested modifications to the Rule 4-43 investigation process. A Rule 4-43 order can issue when there is a belief a lawyer may have committed a discipline violation. When presented with the order, the lawyer must immediately permit the copying of all records. In many instances a forensic copy of a digital storage device will be required, and the report outlines a process for how to deal with this.

Rule 4-43 orders occur infrequently (approximately 10 times a year), but they are an important part of the regulatory process. The report establishes a process similar to that used in an Anton Piller order, but modified to reflect the nature of the relationship between a lawyer and the Law Society. Forensic copies will be made to preserve the best evidence. The investigators will work with the lawyer and his or her counsel to identify acceptable search parameters of the digital record. The forensic copies will be in the possession of the forensic expert, creating a firewall between the Society and the entire contents of the record. If the lawyer and the Society cannot agree on the search parameters, he or she will be able to choose an independent supervising solicitor from a list provided by the Society. The independent supervising solicitor will make decisions regarding the search parameters. The Society will be provided a copy of records culled from the forensic copy, with the irrelevant personal information removed. Should a circumstance arise where the lawyer or the Society believe the independent supervising solicitor has made an incorrect decision regarding the scope of access, an appeal process will exist where a retired judge will adjudicate the dispute on the merits.

This process accomplishes several important safeguards. First, it creates a mechanism whereby the computer record is preserved at the point of request. The ease with which digital records can be destroyed makes this essential. Second, placing the forensic copy in the hands of the forensic expert or an independent supervising solicitor reduces the risk that the Society will access irrelevant personal information. Finally, the process allows for a mechanism to review decisions about access on their merit.

The Benchers also adopted recommendations regarding retention of the forensic copy, dealing with encrypted records, and an obligation to preserve records under a Rule 4-43 order. The Benchers recognize that there is merit in the Society evaluating the Act and Rules to determine whether other matters require clarification in light of developments in computer technology.

The final form of the rules and policies will be the subject of future Law Society communications.