Former justice minister Jody Wilson-Raybould was not formally a lawyer in the eyes of the legal profession at the time the decision was made to continue with the prosecution of SNC-Lavalin on charges of fraud and corruption, CBC News has learned.
For some, that calls into question her decision to cite solicitor-client privilege in refusing to comment on the specifics of the growing controversy over the Quebec-based engineering firm’s criminal case.
While Wilson-Raybould completed law school and practised for several years as a lawyer, the Law Society of British Columbia says Wilson-Raybould didn’t renew her membership in the law society in January 2016.
“It means she cannot practice law in B.C,” said David Jordan, spokesman for the law society. “She could not call herself a lawyer in B.C and would not have any of the benefits of the solicitor-client privilege in B.C. “
But one expert says even a non-lawyer can be bound by solicitor-client privilege if they’re serving as an attorney-general — with the government itself as a client.
Andrew Flavelle Martin, assistant professor at the Peter Allard School of Law at the University of British Columbia, said a non-lawyer attorney general is the one person who can provide legal advice without being a member of a law society.
While most people named attorney general at the federal or provincial level have been practicing lawyers, it’s not a requirement and there have been non-lawyer AGs in the past.
“So she’s right to say that solicitor-client privilege prevents her from talking because she was providing legal advice, even though at the time she wasn’t licensed,” Martin said.
No penalty for breaching privilege?
And since Wilson-Raybould is not a member of a law society, she couldn’t be disciplined for breaching solicitor-client privilege, he added.
Wilson-Raybould would have to apply to be reinstated in the law society if she wanted to once again practice law in British Columbia, Jordan said.
Wilson-Raybould’s name does not appear in the online databases of any other provincial law society, or of the Barreau du Québec. Her successor, David Lametti, is listed as a member of the Quebec bar.
Wilson-Raybould’s office has not responded to questions about her standing as a lawyer and why she didn’t renew her B.C. Law Society membership. Asked on her way out of the House of Commons Wednesday whether she was a member of a law society, Wilson-Raybould ignored the question and kept walking.
Wilson-Raybould has been at the centre of a political maelstrom in recent days — citing solicitor-client privilege in her refusal to comment on reports that she was pressured by Prime Minister Justin Trudeau’s office to tell prosecutors to negotiate a deferred prosecution agreement (DPA) with Quebec-based construction giant SNC-Lavalin.
Under a DPA or remediation agreement, a company can settle criminal charges by agreeing to take certain actions, such as paying a fine or changing its practices.
If convicted, SNC-Lavalin could be barred from competing for federal government contracts for up to a decade.
Wilson-Raybould has hired retired Supreme Court justice Thomas Cromwell to advise her on what she can disclose. Opposition critics have called for Trudeau to waive solicitor-client privilege in her case.
The question of whether conversations between Wilson-Raybould and the government are covered by solicitor-client privilege may not boil down to whether she is a member of a law society.
Adam Dodek, who wrote the book Solicitor-Client Privilege, is among the experts the House of Commons justice committee wants to call as a witness.
While Dodek declined an interview with CBC News because he now serves as dean of the University of Ottawa’s law school, in the past Dodek has argued that an AG who is not a lawyer does not benefit from solicitor-client privilege.
“Under existing doctrine, it is difficult to reach any other conclusion other than that legal advice from a non-lawyer Attorney General is not encompassed by Solicitor-Client Privilege because a non-lawyer Attorney General does not qualify as a ‘professional legal adviser,'” Dodek wrote in 2013.
“This does not mean that all the advice provided by a non-lawyer Attorney General will be subject to disclosure. Much of the legal advice that a non-lawyer Attorney General provides will be the subject of other privileges such as: Crown privilege, litigation privilege and prosecutorial discretion.”
It’s complicated
Gavin MacKenzie, author of Lawyers and Ethics: Professional Responsibility and Discipline, said the question of solicitor-client privilege in Wilson-Raybould’s case hinges on what role she was playing at the time.
Advising the government on a legal question — such as whether a proposed measure is constitutional — would be covered by solicitor-client privilege, said MacKenzie. That wouldn’t be the case, he said, with decisions that have to be made by attorneys general themselves, such as whether to continue a prosecution.
“Generally speaking, conversations with others in government about those decisions aren’t subject to solicitor-client privilege, whether she is a member of the law society or not. Those are functions of the attorney general that are separate.”
Kent Roach, a law professor at the University of Toronto, said the advice an attorney general offers the government is usually the result of the work of many lawyers.
“Even if you assume that the attorney general was not herself acting as a lawyer, I think in most cases there’s going to be senior officials in the room whose advice the attorney general is relying upon,” he said. “And so it would seem to me that in those situations you probably would still have attorney-client privilege.
“It has not, to my knowledge, been authoritatively resolved.”
Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca
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