BC Court of Appeal upholds solicitor-client privilege from murder case

The British Columbia Court of Appeal has denied an appeal by a litigant’s former lawyer to have their lawyer-client privilege removed.

In Goldberg v. Law Society of British Columbia, 2022 BCCA 388, Arthur Dunbar was convicted of first-degree murder. His then counsel, John Banks, was allegedly incompetent and had a history of substance abuse. Dunbar engaged Sheldon Goldberg to represent him in his appeal of the conviction judgment. The court dismissed Dunbar’s appeal.

The court was highly critical of Goldberg’s conduct during the appeals and called the attention of the Law Society of British Columbia, which Goldberg used to be a member of. The law society commenced disciplinary proceedings and found Goldberg was guilty of professional incompetence. He was suspended from the practice of law for three months, which led to his resignation from the law society in 2009.

In 2017, Dunbar filed a petition for access to the law society’s records of his former lawyers, Goldberg and Banks, to assist him in an application to the Minister of Justice for post-review conviction. The law society asserted that the records were confidential and covered by solicitor-client privilege. The parties eventually entered into consent agreements and, as a result, the law society produced the requested records on the condition that Dunbar’s counsel keep the records confidential pending the outcome of a privilege-removal application. Goldberg and Banks were informed of the petition.

Privilege-removal application dismissed

Goldberg chose to participate in the hearing of Dunbar’s privilege-removal application, but the court prohibited him from attending the hearing, except when making submissions to support his stand that the privileges should be removed. The court explained that Goldberg was no longer a lawyer and if he remained present while the law society documents were being examined, it would have amounted to a breach of the privileges subject of the application.

The trial court eventually dismissed Dunbar’s privilege-removal application, finding the records failed to support any of the grounds of incompetence that Dunbar alleged. Goldberg appealed the dismissal. In his appeal, he named himself as a party to the case. The law society filed an application to have Goldberg’s appeal quashed for lack of merit and lack of standing.

No standing to appeal

The appeal court ruled against Goldberg, explaining that “only a party to the litigation in which an order was made had the standing to appeal the order.” The court further emphasized the rule that to enjoy a right of appeal, a person or entity must be a party to the proceeding that produced that order, and consequently be bound by an order in that proceeding. In contrast to this rule, Goldberg was not a party to the underlying litigation.

“Having an interest in the subject matter and making submissions in the court is not, without more, sufficient to confer party status,” the appeal court pointed out. The court further said that the fact that Goldberg was allowed to make submissions at the hearing of Dunbar’s petition did not clothe him with standing to appeal. The court concluded that he was and remained a stranger to that litigation and, as a result, he lacked standing to appeal. The records remained privilege in the hands of the law society.