I had the pleasure of representing the CBABC at the Commission of Inquiry into Money Laundering in British Columbia along with my co-counsel, Ms. Stephanie Dickson. Final submissions were heard this past October and now, as of the time of writing, both the public at large and the parties await the Commissioner Cullen’s final report.

The Commission’s mandate was to conduct hearings and make findings of fact respecting Money Laundering in BC. After hearing the evidence and considering the submissions of counsel, Commissioner Cullen will make whatever recommendations he considers necessary and advisable regarding issues that include:

• the extent, growth, evolution, and methods of money laundering within the legal profession;
• the acts or omissions of regulatory authorities or individuals with powers, duties or function in respects of those sectors to determine if those acts or omissions have contributed to Money Laundering in BC;
• the scope and effectiveness of the powers, duties, and functions exercised or carried out by the regulatory authorities; and
• barriers to effective law enforcement.

On behalf of CBABC, we approached the Commission with the interests of the members (over 7,000 BC lawyers in all practice areas) in mind. We recognized that Commission Cullen’s ultimate conclusions and recommendations may significantly affect how CBABC members will be able to do their jobs going forward. We have also remained acutely aware that, as a public-facing proceeding, the Commission’s recommendations may have a long-term impact on the extent to which clients can feel confident that their dealings with lawyers will remain strictly confidential in the future.

One of our principal goals was to ensure that the Commissioner was consistently reminded of the essentiality of solicitor-client privilege to the work that lawyers perform in the public interest. We emphasized that any anti-money laundering (“AML”) measure that could interfere with solicitor-client privilege or the related concepts of independence and confidentiality would therefore likely compromise the public interest.

• The duty of confidentiality refers to a lawyer’s ethical and professional obligation not to disclose to anyone information received from a client in the course of a professional relationship.
• Solicitor-client privilege is narrower in scope and refers to the sacrosanct privilege that attaches to communications between lawyer and client relating to the giving or receiving of legal advice. It is a principle of fundamental justice and protected by s. 7 of the Canadian Charter of Rights and Freedoms.
• “Independence” in the context of the role that individual lawyers must play in relation to their clients refers to the proposition that the state cannot impose duties on lawyers that interfere with their duty of commitment to advancing their clients’ legitimate interests.

Through our examination of key witnesses and in our submissions, we also sought to dispel and rebut the well-publicized, yet unfounded claims that lawyers and the legal profession were a primary contributor to the money laundering crisis.

Besides adopting the recommendations of Law Society of British Columbia, the CBA made two specific recommendations to the Commission:

• that the government refrain from creating a regulatory AML regime for lawyers (or attempting to apply an existing regulatory AML regime to lawyers); and
• that the Commission explicitly recognize the essential nature and constitutional and legal character of certain foundational elements of the lawyer-client relationship, namely the independence of lawyers, the duty of confidentiality and solicitor-client privilege.

Whether these recommendations have found favor with the Commissioner remains to be seen. Like the public, the CBABC’s members will simply have to wait for the final report.