The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.
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Date: June 16, 2018
Cite as: 2018 SKLSPC 2
Code Chapter: 3.1
Code Heading: Competence
Classification: Witness Protection Program Act; unique legislation
Practice Area: Family Law
Lawyer A represented Client A. The opposing party in the matter, Opposing Party Z, was the subject of a federal witness protection program. Opposing Party Z had shared this information with Client A.
The Witness Protection Program Act, SC 1996, c15, provides certain prohibitions against disclosure of information that may reveal details of persons subject to witness protection. Despite these prohibitions, Lawyer A initiated, served and filed detailed affidavit material in support of a family law chambers matter that violated that Act.
The matter was heard in chambers. Lawyer A did not seek an in-camera hearing. By coincidence, the matter was the last on the list and therefore, there was no one present when the matter was argued, other than Lawyer A, the judge, the sheriff, and the court clerk. Further, since Opposing Party Z did not attend that day, nor was any opposing lawyer present, the application was granted without arguments made on either party’s behalf.
Following the chambers appearance, the Federal Department of Justice applied for and obtained a sealing order regarding the proceedings. Lawyer A then took steps to delete, shred, segregate, or otherwise limit the information on the file.
The Ethics Committee considered whether the member ought to have taken further steps, given the potential implication in this matter being so significant.
Members have an ethical duty to explore and apply the law in unique and rare circumstances; this includes familiarizing themselves with pieces of legislation, such as the Witness Protection Program Act, and determining how it may impact or alter the normal processes and procedures, when it is applicable. Therefore, Lawyer A should have reviewed the Act and took step to prevent the devolution of the protected information, including but not limited to ensuring the affidavit was sealed and applying for an in-camera session in Court.
The Committee found that the member’s failure to comply with this legislation could have had serious implications for the protected persons; however, the member was fortunate in the way the court proceedings unfolded, and the serious implications were only ‘potential’ in this instance.