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The ban on surreptitiously recording conversations must apply to all lawyers

The Criminal Code contained some pretty wacky provisions until they were repealed by Bill C-51 last year. Among them, "an act with intent to alarm Her Majesty " under s. 49, challenging someone to dual under s. 71, and the rule ensuring citizens don't “fraudulently pretend to practise witchcraft, sorcery, enchantment or conjuration, to tell fortunes for money,” under s. 365.

One of the more bizarre sections that continues to remain on the books is s. 184, which involves the electronic recording of private conversations. Laughingly, it’s legal if one of the participants consents to recording a telephone conversation, even if the person on the other end of the line has no idea they are being recorded, Mission Impossible style. It's called the one-party consent exception, and it is beloved by the espionage fiction industry, real-life spies and the National Enquirer.

It's different, however, for lawyers. Under Section 7.2-3 of the B.C. Code of Professional Conduct, a lawyer is prohibited from using any device to record a conversation between the lawyer and a client or another lawyer even if lawful, without first informing the other person of the intention to do so. The language is virtually identical for lawyers in Ontario and other provinces and a breach of this rule is a breach of a lawyer’s ethical duties and could conceivably lead to a fine, or in very extreme cases, suspension or disbarment.

So why is it that the former minister of justice and attorney general for Canada felt that she could breach her ethical obligations under Section 7.2-3 of the Code and record a private telephone conversation with the former Clerk of the Privy Counsel Michael Wernick; a life-long and non-partisan public servant who has advised both Liberal and Conservative governments throughout his career?

There are some flat-earthers, conspiracy theorists and factually challenged scandal-mongers on the internet who seem to think she wasn't acting unethically by breaching any professional conduct rule because she had a higher, more noble, more principled and more honourable purpose; namely, to expose something that may have been “inappropriate” (as opposed to exposing something that may have been an actual “crime”). The former minster has admitted there was no illegality and no crime committed respecting the government’s handling of the SNC-Lavalin matter.

So where’s the scandal?

In the U.S., recent scandals have involved a president paying off prostitutes for their silence; whether the same president obstructed justice and whether he or his party were somehow colluding with the Russians during the election of 2015. He complains about a “witch hunt,” but over 30 of his witches have been indicted or plead guilty since he took office.

In the U.K. scandals involve anti-semitism in the Labour party, delusions of empire among the Conservatives and the circular firing squad over Brexit.

In other countries, political scandals involve the murder of political rivals.

By comparison, Canadian political scandals are disappointingly dull. Canadian scandals are about whether something was “appropriate” or “inappropriate;” be it the Prime Minister’s dancing attire in India, or whether something equivalent to a “plea bargain” should have been considered instead of a criminal prosecution against a company with 9000 employees where the chief perpetrators have long ago resigned or been fired.

Oh, and we can’t forget the consumption of a chocolate bar by the prime minister in parliament exposed by the Tories. That was a real doozy of a scandal.

With the exception of former Conservative cabinet member Tony Clement (and his dangerous penchant for photography and texting), Canadian political scandals are so boring, they aren’t even about sex.

Some magical thinkers in the “I’m not a lawyer but I’m entitled to my legal opinion on Facebook anywaycamp have argued that Jody Wilson-Raybould wasn't acting as a lawyer when she surreptitiously recorded Wernick’s call, or that Mr. Wernick wasn't really a client. Either way they say, Rule 7.2-3 of the Code of Professional Conduct did not apply to the former minister.

But both these arguments are preposterous. She was the highest lawyer in the land, and he was a representative of the Government of Canada under s. 5 of the Department of Justice Act. Of course she was acting as a “lawyer,” and of course he was representing a “client” when she surreptitiously recorded his call. If there was one iota of doubt about that, she might have actually read Section 7.2-3, or better yet, consulted with a Bencher.

My question is this: did any possible issue concerning her handling of the SNC-Lavalin matter (and whether it was appropriate or inappropriate to “pressure” the former Minster to reconsider a remediation agreement), give her the excuse to breach her ethical obligations as a lawyer under section 7.2-3 of the code and surreptitiously record the telephone conversation with Mr. Wernick?

I say no.

In my view, she professionally misconducted herself by recording the call with Mr. Wernick. The code applies to me and it applies to every other lawyer in Canada, including the former attorney general and minister of justice. For the code to mean anything at all, there must be consequences. Those include a potential citation by the Law Society of Ontario for a breach of section 7.2-3, or, if she ever returned to practice law in B.C., a credentials hearing to assess whether she is a good character to practice law in the province where she remains a member of parliament.

But perhaps the saddest and most unfortunate consequence of her ethical breach is that for the rest of her professional life, she should expect to have every single telephone conversation recorded; except of course, her telephone conversations with lawyers.

You see, as lawyers, we aren't allowed to record private conversations without informing the other person of our intention to do so. And we must, as lawyers, comply with those obligations or face the consequences of our misconduct.

  • Not a compelling argument

    Carl Irvine
    "You see, as lawyers, we aren't allowed to record private conversations without informing the other person of our intention to do so. And we must, as lawyers, comply with those obligations or face the consequences of our misconduct." That is not a correct statement. As you correctly state elsewhere, the prohibition is against recording private conversations with our clients (or other lawyers). So the key question, which you don't seriously assess, is whether Mr. Wernick was her client. On a technical level, the answer is "no", her client is the Crown in right of Canada (embodied in the Governor General). The LSO commentary to the definition of "client" in the Ontario Rules makes it clear that "it does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established". A"representative" of a client, is not a client. Wernick is an employee of Wilson-Raybould's client, a "near-client", and he would have had no reason to expect that he was in a lawyer-client relationship with her (surely, a man in his position can reasonably be expected to know that the AG has a single client and it isn't him). The argument that an employee of a client is not a client is not "preposterous", it's expressly set out in the commentary to the definition of "client" in the Rules of Professional Conduct. Now, I don't subscribe to purely a technical reading - since taken literally it would allow lawyers to record all conversations with clients who are organizations (since only their employees, directors, officers, etc. can actually speak for such clients). In interpreting that rule, you have to give some meaning to their purpose. But that only goes so far. A broader interpretation which gives substance to the rule while respecting the text would only extend to prohibiting lawyers from recording discussions with employees of a client where those discussions relate to the lawyer-client relationship of the client, i.e., where the employee is speaking for the client in a lawyer-client relationship). Anything broader than that is an inappropriately broad interpretation of the rule. (Consider this example, I act for a telecom company and am also a client of that telecom company. If I record my discussion with their customer service rep - which has nothing to do with the lawyer-client relations - have I breached the rule? On your interpretation, yes. I doubt a court would agree with such a conclusion). Just as every discussion between in-house council and other employees of their client is not swathed in the protection of solicitor client privilege, not every discussion between in-house counsel and employees (or "representatives") of the client invokes the lawyer-client relationship. In this context, Wernick wasn't seeking legal advice on behalf of the government, he was acting in a policy role, seeking to push a cabinet minister to advance the government's policy. Indeed, in his conversation he expressly states that Wilson-Raybould is not just the attorney general, but also the Minister of Justice, and taken in context, it is in that capacity that he asserts that he is addressing her. There was no client-lawyer relationship here, the prohibition on recording client conversations doesn't apply. Aside, section 5 of the Department of Justice Act doesn't reference "representatives".