Lawyer fails to have parts of Law Society Act declared unconstitutional

A Toronto lawyer faces a disciplinary hearing after failing to have portions of the Law Society Act declared unconstitutional.

Jodi Lynne Feldman claimed her Charter rights were breached when the Law Society of Upper Canada compelled her to turn over solicitor-client privileged communications during its investigation of a complaint against her.

The law society alleges Feldman engaged in sharp practice during her representation of a client, MK, in divorce proceedings. Feldman is accused of failing to notify the lawyer for MK’s wife that a divorce order had been granted, despite knowing the wife opposed it. Feldman is also accused of knowingly swearing a false affidavit by her client, although none of the accusations have been proven.

Feldman and MK argued that ss. 49.3 and 49.8 of the Law Society Act violate ss. 7 and 8 of the Charter. The sections of the act allow the law society to require production of privileged information related to an investigation where they have a “reasonable suspicion” of misconduct, and to rely on them in discipline proceedings.

The lawyer and her former client wanted additional safeguards to protect privileged communications, including raising the threshold for law society access to “absolute necessity,” and requiring review of the documents by an independent arbiter. In addition, MK wanted a requirement for the client’s consent to turn over documents.

But in a decision dated Nov. 6, a three-member law society panel ruled against them, pointing to other provisions in the act that prevent the law society from disclosing information seized to anyone else, and allowing it to receive evidence in the absence of the public.

“The low threshold allows the Society to initiate investigations even where a citizen’s complaints may not be well supported or carefully articulated. In our view, that is an important provision in the Act, designed to facilitate the public’s best access to the complaint process respecting lawyers in the province,” wrote panel chairwoman Barbara Murchie. “When combined with the protections for any materials seized by the society . . . the reasonable suspicion threshold represents a minimal impairment of solicitor/client privilege.”

The alternative process proposed by MK and Feldman were “not only unnecessary, but are cumbersome ad counterproductive,” especially in the event of opposition from a privilege holder.

“It would prevent or delay the investigation and/or prosecution of Feldman and thereby hinder the Society in carrying out its function of regulating lawyers in the province to ensure that they meet standards of learning, professional, competence and conduct,” the panel wrote.

The panel also found the use of privileged material in discipline hearings is “absolutely necessary in the regulation of lawyers,” but in the Feldman case, found that the law society had not implemented “the act in accordance with s. 8 of the Charter.”

The law society included some privileged communications in an affidavit, taking the position that the privilege was protected because the client was identified by initials only.

“There are undoubtedly many circumstances in which the society can be confident that shielding the parties’ identities is sufficient to protect solicitor/client privileged material, but, in our view, such confidence is unwarranted here,” the panel wrote. “The important point is that the society requires a procedure for protecting solicitor/client privilege in circumstances such as those in Feldman. In this case, in the absence of other protective mechanisms, the society’s practice of never notifying a client of its intended use of solicitor/client privileged information is inconsistent with charter values.”

Still, the panel decided no harm was done, as the privileged portions were later redacted, and MK was granted standing at the hearing.

“Although the society did not implement the act in accordance with s. 8 of the Charter, no remedy is required as MK is a party to the application to protect solicitor/client information.”

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