CBABC advocacy wins liens exemption in PIPA

On May 18, Bill 30, the Miscellaneous Statutes Amendment Act (No.2) was proclaimed, and a two-and-a-half year campaign by the CBA to protect solicitor’s liens came to a successful conclusion. The story of the behind-the-scenes work to bring about this end is known to only a few, but reflects the best of CBA advocacy on behalf of B.C. lawyers.

Every day in our province, lawyers accept work from clients on the understanding that payment will come later. The basis for that act of faith lies in the common law right known as a solicitor’s lien, namely the right to be paid should the clients request their legal file or ask for it to be transferred to another lawyer. This assists many clients in B.C. to retain lawyers for their worthy cases despite their lack of immediate funds.

The “product” lawyers provide to their clients isn’t as tangible as a physical file – it is the skills and experience they bring to bear on a legal matter. However, the file itself frequently contains a mixture of personal information about the client and the analysis of the facts and the law. In addition, the file may contain items paid for by the lawyer such as expert reports, on the expectation of those costs being covered under a contingency fee or other delayed payment arrangement. Under the Personal Information Protection Act (PIPA) as originally drafted, a client could potentially demand the file without compensation.

When PIPA was first introduced, the CBA was immediately concerned that it did not have an explicit exemption for material subject to a solicitor’s lien. Key members of the CBABC Freedom of Information and Privacy Law Section, including Tamara Hunter, Clark Ledingham, Mike Lucas of the Law Society and Stuart Rennie of the CBABC, began the work of pressuring the government to move a potential amendment up the legislative agenda priority list. Over the next two years, it became a top CBA government relations focus raised in all meetings with Ministers and MLAs. Lest the legislative loophole become widely known before it could be mended, the CBA’s approach was to quietly work toward securing the exemption.

It is a testament to the positive working relationship between the CBA and lead senior bureaucrats in government – Chris Norman and Sharon Plater in particular – that an amendment was finally drafted and passed. Their patient, thoughtful efforts to mitigate the unintended consequence of the original Act were exemplary. Thanks are also due to previous minister Joyce Murray and current minister Mike De Jong, as well as former and current Attorneys General Geoff Plant, QC and Wally Oppal, QC and the Law Society of B.C., for their work in ensuring that the importance of solicitor’s liens was understood and supported by government.

This article was published in the June 2006 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.