Lawyer’s Fee: Between Transparency and Client Confidentiality
The right to access to information is a fundamental principle in a democratic society, but its application to professional orders raises complex issues. These bodies, which are responsible for regulating their members, hold sensitive information to which access must be balanced with the requirements of confidentiality and the protection of privacy. The decisions presented below, involving Mr. Sarto Landry and the Office of the Syndic of the Barreau du Québec, clearly illustrate the tensions between these different interests.
Background to the Case
Mr. Sarto Landry, a lawyer and member of the Quebec Bar, initiated the litigation by filing an access to information request to the Barreau, seeking documents related to disciplinary investigations and complaints involving him. Mr. Landry requested the disclosure of invoices issued by lawyers who had worked on his disciplinary files, including details of fees and disbursements paid. He also sought to obtain the correspondence between the investigation file numbers and the disciplinary complaint file numbers, as well as a list of investigation file numbers that did not lead to a complaint. Finally, he requested access to the exchanges between the Office of the Syndic (the body responsible for disciplinary investigations) and other representatives of the Quebec Bar regarding his registration in the professional order.
The Quebec Bar, through its Access to Information Officer, refused to disclose part of the requested documents, citing attorney-client privilege, the confidentiality of investigations, and the fact that certain documents did not fall within its mandate to oversee the practice of law. This decision led Mr. Landry to challenge the decision before the Quebec Access to Information Commission (hereinafter “AIC”).
AIC’s Decision
The AIC partially granted Mr. Landry’s request1, ordering the Bar Association to disclose the list of the investigation file numbers concerning him, while refusing access to communications with the Bar Association.
It justified its decision by stating that disclosure of these numbers would not reveal the content of the investigations. However, it refused access to the lawyers’ invoices, considering that they were not held for the purposes of supervising the practice of the profession and did not contain any personal information. Relying on case law2, the AIC concluded that the collection of fees by the trustee is an administrative task and not a matter of professional oversight.
Decision of the Quebec Court
The Quebec Court was seized of a principal appeal by the Barreau, challenging access to investigation file numbers, and an incidental appeal from Mr. Landry, challenging the refusal to grant access to the invoices3.
The Court dismissed the Bar Association’s main appeal, upholding access to investigation file numbers. It held that the AIC had not erred in concluding that such disclosure did not risk revealing the content of the investigations.
It also partially granted Mr. Landry’s incident appeal, ordering the Bar to communicate the total amount of fees and disbursements paid, but not the detailed content of the invoices paid to the lawyers representing the professional association in disciplinary proceedings. The Court relied on applicable case law4 to reiterate that, although professional secrecy protects the lawyer-client relationship, the total amount of legal fees is generally not covered by that privilege.
Key Takeaways
The AIC and the Quebec Court had to decide whether the requested documents fell within the Barreau’s mandate to oversee the practice of the profession. This determination is crucial, as it determines the applicable access regime.
Furthermore, Section 9 of the Charter of Human Rights and Freedoms5 protects professional secrecy. Lawyer invoices contain information that may be covered by this secrecy (description of services provided, nature of legal advice given, etc.). The Court therefore had to strike a balance between the protection of professional secrecy and the right of access to information. Accordingly, it noted that, although professional orders have confidentiality obligations, they must nevertheless demonstrate transparency by facilitating access to information, which requires a balanced and nuanced approach that takes into consideration the particularities of each request as well as the requirements of the law and case law.
Written with the collaboration of Laury-Ann Bernier, Law Lecturer.
1Landry c. Barreau du Québec (Bureau du syndic), 2022 QCCAI 356.
2Houle c. Ordre des psychologues du Québec, 2021 QCCAI 233.
3Barreau du Québec (Bureau du syndic) c. Landry, 2024 QCCQ 4567.
4Kalogerakis c. Commission scolaire des Patriotes, 2017 QCCA 1253.
5RLRQ, c. C-12.