A ruling expected Monday at the fraud trial of three former Nortel Networks Corp. executives could send a chill over the legal community and convince some lawyers to stop taking notes at critical meetings.
Crown attorneys at the long-running Toronto trial have subpoenaed four lawyers representing Frank Dunn and Douglas Beatty to testify about meetings the lawyers attended in 2004 with their clients and Nortel investigators. The Crown has also subpoenaed the lawyers’ notes from the meetings, a move the defence is fighting on the grounds the notes are covered by a legal protection known as “litigation privilege.”
Mr. Justice Frank Marrocco of the Ontario Superior Court has said he will rule Monday on whether the lawyers’ notes can be used as evidence in the case.
The decision will be critical for all lawyers, said University of Ottawa law professor Adam Dodek, and could reduce the ability of lawyers to prepare for trials if they stop writing down information they fear could be subpoenaed.
“It sends a really chilling message out there in the legal community and to members of the public,” he said.
University of Toronto business professor Richard Powers said a ruling that lawyers’ notes can be compelled as evidence in a trial could immediately change the way lawyers work. Lawyers will be reluctant to make or keep notes of meetings they attend with their clients, he said.
“If this goes through, you’re going to have a huge bonfire down on Bay Street,” he said.
Mr. Powers predicted a ruling allowing the use of notes would quickly be appealed because of its broad importance to the legal profession.
“This is something that realistically could go right to the Supreme Court,” he said. “Our whole legal system is based on certain principles and this solicitor-client privilege is one of the hallmarks of the lawyer-client relationship. Lawyers certainly aren’t going to give up on this easily.”
The Crown argues the lawyers for Mr. Dunn and Mr. Beatty can testify and their notes can be used because they were simply observers at the meetings between their clients and investigators hired by Nortel’s board. The notes record the questions and answers at a meeting with “third parties,” so they do not contain advice and there is no privilege to be asserted.
Crown attorney Robert Hubbard argued there have been a number of cases in the past where documents made by lawyers have been used as evidence, and the request – while uncommon – is not unprecedented.
The defence has argued, however, that cases in the past have been civil trials, rather than criminal cases, and the circumstances were different. Lawyer Mark Sandler, who is part of Mr. Dunn’s legal team, argued the notes are subject to “litigation privilege” because they were documents prepared by lawyers to assist in lawsuits.
Prof. Dodek argues it is “unethical” for the Crown to call the lawyers and seek their notes, even if a court rules there is a legal ability for them to do so. He said Crown attorneys have a higher ethical duty to the administration of justice, and a decision to subpoena the notes interferes with the lawyers’ ability to represent their clients.
“They might hold back on the extent to which they write down notes or impressions, and that could impact on their ability to prepare for trial or prepare legal advice.”
This article includes a correction