B.C. judge cautions defence bar against swearing affidavits on behalf of clients

A British Columbia judge has cautioned the insurance defence bar that lawyers should not be swearing affidavits on behalf of clients, except in the most limited of circumstances, and doing so might result in the waiver of solicitor-client privilege.
British Columbia Supreme Court Justice Paul Walker made the observation in a videotaped address to the Canadian Defence Lawyers’ 7th Annual Insurance Symposium, held in Toronto on Mar. 4.
Walker cited a number of occasions in which he had seen B.C. lawyers swearing affidavits or giving testimony on behalf of clients. The practice is a concern in part because it essentially shields the lawyer’s client from having to testify itself at court, with the lawyer’s affidavit or testimony essentially providing the evidence on the client’s behalf.
Walker then cited the Canadian Bar Association’s Code of Conduct, which states that lawyers should not being putting their own credibility at issue by swearing an affidavit or testifying at trial on behalf of a client.
Doing so, Walker warned, might ultimately lead to the waiver of solicitor-client privilege. Solicitor-client privilege is a legal principle upholding the confidentiality of what is said between a lawyer and his or her client.
“What is the rationale for ordering the waiver of solicitor-client privilege?” Walker said. “It is a remedy to the unfairness caused by the lawyer who effectively says to the court and the other party [through the use of a sworn affidavit]: ‘This is what I know. You must accept what I know, but you cannot discover how I know it.'”
Walker classified four general situations in which he has seen lawyers swear affidavits on behalf of clients. One involved a lawyer giving testimony representing the merits of a client’s defence. This happened recently in Split Vision Eyewear Inc. v. The Economical Insurance Group, Walker noted.
In Split Vision, the insurer brought a motion for security of costs, noting the insured had limited financial means to pay in the event of losing the case. Posting a security of costs is a legal measure used to prevent vexatious litigation by people who have nothing to lose financially.
In bringing the motion for security of costs, a legal assistant working for the counsel for the insurance company provided a summary of the evidence to be given at trial. In her testimony to court, she said counsel had informed her that the insurance company would lead evidence intended to demonstrate fraud, thus basically outlining the defence.
Walker ordered solicitor-client privilege be waived, because, through the legal assistant, the lawyer had been seen to be entering the fray, essentially providing opinion on matters of substance in the case.
The lawyer argued the legal assistant had given the testimony, not the lawyer. “I did not accede to that argument,” Walker said.