Lawyers, Robocalls, and Interviews

September 11, 2013

In an article yesterday Postmedia columnist Steve Maher reported that a Conservative Party lawyer sat in on interviews with key witnesses in the Robocall case.  In a follow up article today I provided comment.   

The topic of lawyers, witnesses, and police interviews was recently addressed by the Ontario Court of Appeal in the case of Schaeffer v. Woods (by way of full disclosure Howard Krongold, lawyer with WSGA acted as counsel for the Criminal Lawyers’ association at both the Ontario Court of Appeal and Supreme Court of Canada).

Under normal circumstances witnesses are under no obligation to talk to the police.  There are however some exceptions to this general rule.  Once such exception is addressed in  Schaeffer v. Woods.  When a police officers is investigated by the Special Investigations Unit any witness officers are required by law to submit to an interview and to answer any questions.  This type of situation is unique and it appears that the witnesses in the robocall case were under no such statutory compulsion to attend for an interviewed.   

Normally, when a witness does speak with the police it is very rare for the police to agree to have legal counsel present.  Investigators, unless compelled by statute (as they are in the SIU context), are under no obligation to allow a witness’s lawyer to be present during a the interview.  The police may agree in some cases but these cases are few and far between. 

The issue highlighted by Maher in his coverage is that it was the same lawyer who sat in on the multiple witness interviews and the fact that the lawyer was a third-party.  

This type of situation can lead to conflicting duties.  A lawyer has concurrent ethical duties to the administration of justice and to his client.  In some situations this may pose problems as Frank Addario notes in Maher’s article:  

There’s no duty of confidentiality at that point. You know the lawyer’s got to report back to the third-party client, which might itself be the target of the investigation.It is precisely for this reasons that it is uncommon for the same lawyer to represent co-accused clients.  Quite simply a lawyers’ obligation to each client may be in conflict.   As a criminal defence lawyer it is my practice avoid these situations. 

Even when there is a possibility a lawyer could find himself in conflict between concurrent duties negative consequences can manifest.  This was the situation in Schaeffer v. Woods where the ONCA grappled with the issue of a witness police officer’s right to counsel prior to completion of their police duty book notes.

The ONCA characterized the danger of this conflict as follows:

[T]he lawyer-induced refinements or qualifications that would almost certainly flow from lawyer involvement in the note-making process would undermine the very purpose of a police officer’s notes, namely, to record the officer’s independent and contemporaneous record of the incident.

This danger is comparable to the issues raised by Maher.  A third party lawyer present at multiple interviews detracts from independence and may present the lawyer with ethical dilemmas.  

In the Schaeffer case the ONCA struck a balance between the right to counsel and the witness officer’s duties.  The case has been appealed to the Supreme Court and is currently under reserve but I am sure the SCC wil agree with the ONCA on at least one point.  The ONCA held:

[L]awyers have an ethical obligation to advise clients in accordance with the law. I have confidence in the ethical standards of the legal profession and I am confident that a lawyer called upon to give the type of advice I have outlined in these reasons would not misuse or abuse the opportunity…

Nonetheless, one may wonder: why investigators agreed to allowed the same lawyer to attend the interviews in the Robocall case?  Perhaps it was necessary to secure the evidence but it was certainly not an ideal situation for anyone.