Hergott: Cones of silence removed

Lawyer Paul Hergott writes about Jody Wilson-Raybould’s testimony this week

Two cones of silence had to be removed for us to hear Jody Wilson-Raybould’s testimony.

As Minister of Justice, cabinet privilege silenced her communications with cabinet colleagues. As Attorney General, she was the Government’s lawyer and bound by solicitor-client privilege.

Cones of silence get in the way! Cabinet privilege is a brick wall blocking increased government transparency. And solicitor-client privilege can seem like a tool used by bad people to subvert justice.

I have no experience with cabinet privilege, but I do have direct experience with the other, most extensively in the context of personal injury cases.

At the heart of solicitor-client privilege is the concept that people must be able to speak candidly with their lawyers so that their interests can be fully represented (R. v. McClure, 2001 SCC 14, paragraph 2).

Privilege starts with the very fact that you have consulted with a lawyer.

Most consulting with me for the first time are almost apologetic. They bend over backwards to explain that all they want is what’s fair, as if the very act of consulting with a lawyer about an ICBC claim implies they’re trying to screw the system.

If they’re worried about my perception, how mortified must they feel about family, friends or co-workers learning about the consultation? Or their ICBC adjuster, because a lawyer consultation means you are not blindly trusting whatever Kool-Aid the adjuster is pouring.

No-one will find out that a lawyer consultation occurred unless you tell them. The lawyer won’t give the ICBC adjuster a call to find out about the case, nor take any other steps that would reveal the consultation occurred, unless of course you instruct them to.

The same goes for actually retaining a lawyer. You can retain and consult regularly with a lawyer on a completely confidential basis.

Injured victims usually want me to tell ICBC right away that I am involved, to end the ongoing stress of dealing directly with an adjuster. But if ICBC is being “generous”, providing more than minimally required benefits, it is sometimes best to keep the retainer confidential until the inevitable time when the “generosity” ends.

And yes, everything you tell your lawyer is confidential. But that doesn’t mean you can use a lawyer as a hired gun to subvert justice by pursuing a fraudulent claim on your behalf.

Lawyers are bound by important ethical obligations.

Here are just a couple applicable quotes from British Columbia’s Code of Professional Conduct.

  1. “A lawyer should not aid, counsel or assist any person to act in any way contrary to the law” (2.1-1(a));
  2. “A lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts…” (2.1-2(c)).

An ethical lawyer will refuse to take on a claim they know to be fraudulent.

Apart from ethics, it would be unwise in the extreme to take on such a case. The civil justice system is built to get to the truth. You might get away with lying in your dealings directly with ICBC, but carrying that through with a lawyer and lawsuit is going to end badly, particularly for the lawyer who works on a contingency fee basis while fronting thousands of dollars of their own money to the expense of litigation.

In the over 20 years I’ve been doing this work, no-one has ever come to me asking that I pursue a fraudulent claim. But in thankfully only a small handful of cases, I’ve discovered dishonesty part way through.

I must keep the information I learned, uncovering the dishonesty, strictly confidential. And I cannot disclose my reason for “firing” the client, but I will stop acting.

But over the course of handling a claim, all sorts of facts come up. Some are bound to be unhelpful to the case. For example, a client whose back was injured in a crash sustains some other back injury the following year, but the injury is in a different area that completely heals.

I’ve had clients ask whether the medical records related to that other back injury must be disclosed to ICBC. They’re not trying to be fraudulent. They just don’t want to be cheated, because ICBC will undoubtedly argue that any ongoing back problems were caused by the other injury, not the crash.

I explain that the rules of our civil justice system require disclosure of relevant documentation, even if it might hurt your case. And they include an event called an Examination for Discovery where you must answer questions posed while under oath.

I tell my clients that that I will stop acting for any client who is not forthright during an Examination for Discovery or instructs me not to disclose relevant documentation.

But I do so with reassurance that we can deal with unfair ICBC arguments. What we cannot deal with is an attack on credibility that comes from ever being less than forthright. As our mamas told us, honesty is always the best policy.

Missed last week’s column?

Hergott: Victims of car crashes could be penalized

Like us on Facebook and follow us on Twitter.

Just Posted

Penticton council members plant tree to celebrate local government

It is the 100th anniversary of the Local Government Management Association of B.C.

Crews respond to smoke at Penticton thrift store

The rooftop A/C unit began filling the building with smoke, prompting them to evacuate

Housing provided for women and children fleeing violence in Penticton

Announcement on Friday is part of a provincewide initiative to construct additional housing.

Okanagan Dance Studio to host yard sale and market on June 1

Proceeds to support the studio’s showgroup

People’s Party of Canada leader talks B.C. trade to Penticton supporters

Maxime Bernier, head of the new federal political party, spoke at Time Winery on Friday

B.C.’s fight to regulate bitumen through pipelines to go to Canada’s top court

BC Appeal Court judges found B.C. cannot restrict bitumen flow along Trans Mountain pipeline

Nominate your favourite businesses for the Best of the South Okanagan

Join the Penticton Western News as they celebrate the Best of the South Okanagan awards

Friend of accused Kelowna murderer takes the stand

Elrich Dyck’s testimony continued Friday with details from the night Chris Ausman was killed

Princeton RCMP recover stolen homework and save the grade

It’s a slightly better excuse than “the dog ate my homework.” Earlier… Continue reading

New Summerland distillery has received recognition

Alchemist Distiller won audience choice award at recent competition

Scheer says it would take Conservatives five years to balance budget

Scheeraccused the Liberal government of spending $79.5 billion of previously unbudgeted funds

Vancouver woman sexually assaulted after man follows her home; suspect at large

Police are looking for an Asian man in his 40s after the incident on Vancouver’s east side.

B.C. man, 30, arrested for driving his parents’ cars while impaired twice in one day

The Vancouver-area man was arrested after officers caught him driving impaired twice in one day

Rally for climate justice strikes Okanagan yet again

A handful of students were seen rallying in front of the Okanagan Science Centre

Most Read