Public Disclosure of Judgements by Licensee

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Law Society Act

Confidentiality 49.12 (1) A bencher, officer, employee, agent or representative of the Society shall not disclose any information that comes to his or her knowledge in relation to an audit, investigation, review, search, seizure or proceeding, or potential audit, investigation, review or proceeding, under this Part.

Exceptions (2) Subsection (1) does not prohibit,

(a) disclosure required in connection with the administration of this Act, the regulations, the by-laws or the rules of practice and procedure;

(b) disclosure required in connection with a proceeding under this Act;

(c) disclosure of information that is a matter of public record;

(d) disclosure by a person to his or her counsel;

(e) disclosure with the written consent of all persons whose interests might reasonably be affected by the disclosure;

(f) disclosure of such information as may be specified by the by-laws respecting an audit, investigation, review, search, seizure or proceeding, or potential audit, investigation, review or proceeding, under this Part, in the circumstances specified by the by-laws;

(g) disclosure of information to an authority responsible for regulating the practice of law or the provision of legal services in another province or territory of Canada, if the authority is subject, under the laws of its jurisdiction, to restrictions and permissions respecting the disclosure of information that are comparable to those to which the Society is subject under this Act;

(h) disclosure of information if there are reasonable grounds for believing that there is a significant risk of financial harm to a person, and the disclosure is made principally for a purpose related to preventing the harm or investigating the risk;

(i) disclosure of information if there are reasonable grounds to believe that there is a significant threat to the life, health or security of an individual, and the disclosure is made principally for a purpose related to addressing or investigating the threat; or

(j) any other disclosure specified by the by-laws, in the circumstances specified by the by-laws.

Solicitor-client privileged information (2.1) Despite subsection (2), information that is subject to solicitor-client privilege shall not be disclosed under clause (2) (e), (f), (h), (i) or (j).

Disclosure to public authorities 49.13 (1) The Society may apply to the Superior Court of Justice for an order authorizing the disclosure to a public authority of any information that a bencher, officer, employee, agent or representative of the Society would otherwise be prohibited from disclosing under section 49.12.

Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2011 ONLSAP 23 (CanLII)

[15] Mr. Mundulai asserts that when Ms. Ellen Ward, the Law Society investigator, called police officer Sergeant Michael Richmond and conveyed to him [quotes taken from Sergeant Richmond’s notes] that she “had become aware that beginning in April, 2008 that Mundulai was back in practice – not abiding by bail conditions – 8 court dates where he represented clients without supervision – all appearances at OCH courts”, she breached s. 49.12(1) of the Law Society Act because some of this information was not a matter of public record. The Informations before the Court at Old City Hall were a matter of public record; the information about the absence of supervision was not. It had come to her knowledge as a result of an investigation, i.e., from Mr. Mundulai himself who had to be ordered by a Hearing Panel of the Law Society to provide it, and from other investigative communications with Mr. Mundulai.

18] It is easy to see the error into which Ms. Ward and her Supervisor arguably fell. Some of the information was a matter of “public record”, namely the court record itself, and disclosure would be permitted pursuant to s. 49.12(2)(c). But the fact that Mr. Mundulai was in the criminal Court as counsel was not the end of the information given. Ms. Ward also disclosed that he was breaching his bail terms because “he represented clients without supervision”. The absence of supervision would not ordinarily appear on a public record. That came from Mr. Mundulai. Indeed, because that aspect was not on the public record, even a Superior Court judge could not release that information to the police because it “may tend to criminate” Mr. Mundulai. Indeed, it would appear that the sole purpose of passing the information on to the police was to criminate Mr. Mundulai by subjecting him to police investigation and presumably prosecution thereafter.

[19] Accordingly, the argument made by Mr. Mundulai that our Act does not permit communicating this aspect of the information gathered to prosecutorial authorities is persuasive. The Law Society has been much criticized for this legislation – designed to promote full and frank communication with the Law Society of Upper Canada in the public interest – and we think that this criticism is correct. While it would be silly to require mandatory disclosure of every breach of the criminal or civil law that is disclosed by a person being investigated, it is equally unrealistic to think that the Law Society can maintain the respect of the public if it conceals, for example, such serious crimes as a pattern of sexual assault, murder, or more realistically, even a middling fraud. Indeed, the victim of a fraud who is unaware of it cannot under these rules even be told of the fact that they have been defrauded. The police cannot be told at all unless the information is a matter of public record. Such an absolute rule respecting crimination no longer makes sense.

Grace, Re, 1991 CanLII 572 (ON LST)

33. Hillary McCormack, the Crown Attorney present at the show cause hearing, attempted to interrupt Mr. Grace's evidence and questioned whether he had obtained a waiver of solicitor-client privilege from Ms. D. Mr. Grace responded that the evidence he was giving was a matter of public record. In fact, Mental Health Review Board hearings are not matters of public record.