Practice Watch

by Barbara Buchanan, Practice Advisor

In this Practice Watch:

E-mail notices to the profession
Implied undertakings of confidentiality in civil cases
Hidden data in electronic documents
Withdrawal for non-payment of fee
Speaking to one’s own affidavit

E-mail notices to the profession

Ever since the BC Court of Appeal released its first decision in Christie v. British Columbia, I have answered many telephone and email questions about the application of PST to legal services. From these inquires, it became apparent to me that many members had not received (or read) the Law Society’s numerous email notices on PST and had not checked the website for updates (www.lawsociety.bc.ca). If there is important information for the profession, it will be posted on the Society’s website and, in some cases, distributed to members by email. If you are not receiving email notices, I strongly recommend that you make sure the Society has your current email address. To update your email address or provide other contact information, please contact the Law Society at 604 669-2533 and ask to speak with a Member Services Representative, or you can email memberinfo@lsbc.org or fax 604 687-0135. I also strongly recommend that you regularly check the Law Society’s website.

Implied undertakings of confidentiality in civil cases

Parties obtaining production of documents or transcripts of oral examinations for discovery are on an implied undertaking, in most situations, to keep the documents confidential. In a recent BC Court of Appeal decision, Doucette v. Wee Watch Day Care Systems Inc., 2006 BCCA 262, the court commented on the scope of implied undertakings. Below is an extract from the Reasons for Judgment of the Honourable Madam Justice Kirkpatrick:

It is easy to imagine a situation in which criminal conduct is disclosed in the discovery process, but no one apprehends that immediate harm is likely to result. Nevertheless, if an application to court is required before a party may disclose the alleged conduct, the perpetrator of the crime may be notified of the disclosure and afforded the opportunity to destroy or hide evidence or otherwise conceal his or her involvement in the alleged crime.

... I conclude that the implied undertaking of confidentiality rule is as stated in Hunt [Hunt v. T & N plc (1995), 4 BCLR (3d) 110]: a party obtaining production of documents or transcriptions of oral examination of discovery is under a general obligation, in most cases, to keep such documents confidential. A party seeking to use the discovery evidence other than in the proceedings in which it is produced must obtain the permission of the disclosing party or leave of the court. However, the obligation of confidentiality does not extend to bona fide disclosure of criminal conduct. On the other hand, non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt.

The focus of the inquiry is on the use to which the evidence is to be made. A party is limited in the manner in which it can use the discovery evidence as I have indicated above. A non-party, such as the police, who obtains the discovery evidence by lawful means (such as by search warrant) is not prevented from using the evidence to further an investigation. Whether the evidence can be used in a subsequent criminal proceeding is a matter to be considered by the criminal court.

The court also considered a s. 7 Charter issue and found that the rules of civil procedure embodied in the implied undertaking of confidentiality cannot be elevated to a principal of fundamental justice.

Hidden data in electronic documents

working at computerWhen you send someone an electronic document you may be inadvertently also sending prior drafts of the document. Imagine emailing an opposing party an offer to settle for $5 million that includes a prior draft offer of only $1 million. Unintended release of sensitive confidential information can have serious repercussions and lawyers should take special precautions with electronic documents.

If the word “metadata” is not in your vocabulary, it’s time to learn it. Metadata means data about data. When you create an electronic document you are also creating metadata, some of which you may not see on your computer screen. That metadata can include previous versions of a document. When you send someone an electronic document you are also sending its metadata and, if the recipient knows how to access the metadata, he or she may have access to your earlier drafts. The simplest example is the “track changes” function in Microsoft Word that can be used to reveal prior drafts. Other popular software such as Adobe Acrobat and Corel WordPerfect also produce metadata.

For more information on metadata and how to remove it from documents, check the software manufacturer’s website.

Withdrawal for non-payment of fee

It has come to the Law Society’s attention that some judges are concerned that some counsel are withdrawing too close to the trial date. While the reasons for these withdrawals remain confidential, some judges have formed the impression that non-payment of fees is at issue. Lawyers are reminded that Rules 6 and 7 of Chapter 10 of the Professional Conduct Handbook state that, if a lawyer’s retainer requires payment in advance, the lawyer must confirm this in a written agreement with the client, which specifies the payment date. In addition, the lawyer must not withdraw for non-payment of fees unless there is sufficient time for the client to obtain other counsel and for that other lawyer to adequately prepare for trial.

Speaking to one’s own affidavit

It has also come to the Law Society’s attention that some members are inappropriately speaking to their own affidavits. This practice should be avoided. Rule 9 of Chapter 8 of the Professional Conduct Handbook provides that unless the evidence relates to a purely formal or uncontroverted matter, a lawyer who gives viva voce or affidavit evidence in a proceeding shall not thereafter act as counsel in that proceeding unless it is necessary in the interests of justice. The lawyer may also be prevented from acting as counsel on an appeal from the proceeding (Rule 10).

Many decisions have referred to the undesirable practice of counsel giving evidence. See for example National Financial Services Corporation v. Wolverton Securities Ltd. (1998) 52 BCLR (3rd) 302 (SC); Pioneer Lumber Company v. Alberta Lumber Company (1923) BCR 321 (CA); Cartwright, J. in Stanley v. Douglas (1952), 1 SCR 260 at 274, 4 DLR 689 where he quotes Ritchie C.J. in Bank of British North America v. McElroy (1875), 15 NBR 462 (SC).

For more information on this subject, see “Chambers Practice” under Civil Litigation in the Professional Legal Training Course/Practice Material section of the Law Society website (www.lawsociety.bc.ca).