Monday, February 11, 2019
A Few Thoughts On Jody Wilson Reybould And Solicitor Client Privilege Re SNC Lavalin
If I’m a criminal defence attorney and had had a client who told me he was innocent of charges and who then hired another lawyer, why would I, if I was asked, refuse to say what my client had told me in proclaiming his innocence?
Especially if with his new lawyer he continues to say he’s not guilty?
What aspect of solicitor client privilege or the duty of confidentially stops me from saying what he’s told me as to his innocence and what he continues to say as to it?
And doesn’t his ongoing public statement constitute a waiver of the privilege and the duty, if they even apply, to that extent of that proclamation of innocence?
So here Reybould as AG was the PMO’s lawyer.
It now has a new lawyer, Lametti.
So she owes it a duty of confidentiality and the need to honour privileged communications, the latter of which essentially covers legal advice she gave.
1. her advice is manifest—she refused any suggestion, request or intimation made to her to overrule her DPP and and agree to remediation. In effect, her advice was to reject remediation.
2. Here the PMO can be taken to have proclaimed its innocence and to continue to be doing so.
So what in principle stops Reybould from affirming there was never any attempt to influence her by the PMO, as opposed to the other side of the Shawcross principle, under which govts short of influencing decisions can make what it thinks are alternatives and options to be considered known, but must stop short of suggesting, at a minimum, what the AG ought to, should, do?
I can’t see the claim of solicitor client privilege or the duty of confidentiality stopping her from saying the PMO never influenced her.
Is there any argument that because “influence” is here a legal judgment or conclusion about a set of facts, all the interactions, as opposed to a straight assertion of innocence, that the two cases are disanalogous?
I wouldn’t have thought so.
The only principled reason I can see for Reybould’s silence is that she’s not sure whether the PMO crossed the line, which, if that’s the reason, is damning enough to the government.