Privacy V. Public Access In Canadian Bar Admission

An important issue in bar admissions involves striking a proper balance between the privacy of an applicant and the public interest in matters involving attorney licensure.

An applicant who was admitted last November by the Law Society of British Columbia despite allegations of collaboration on a test raised issues of the confidentiality of the proceedings.

As a result, an order governing public access to information about the case has recently been entered by a Hearing Panel.

We accept that the parties, through their agreement, have identified the Confidential Information within the hearing record and the Admission Decision that is highly personal and sensitive for the Applicant and other individuals.  We further accept that, to the extent the parties have reached agreement, disclosure of the Confidential Information has no public interest value.  We address below the question of the public interest value of the Confidential Information in respect of which the parties do not agree.

Again, the Law Society in its submissions accepts that the agreed to restrictions on disclosure of the Confidential Information would not compromise the Law Society’s ability to inform the public of the result of the Admission Decision and the essential reasons for that result.

The disclosure of information involves a balancing of interests

In Applicant 9, the panel sought to weigh the public interest in hearing transparency and openness on the one hand against the value of personal privacy on the other.  The panel concluded that some of the information in evidence was highly sensitive, and its disclosure could be damaging to the privacy interests of the applicant.  Conversely, there was no public interest value in disclosing the sensitive personal information.  Therefore, the balance clearly favoured restricting disclosure of the information.

In this matter, a similar balancing of interests is required; however, the considerations are not as straightforward as in Applicant 9. 

There, the underlying issues had all been finally determined.  The competing interests being weighed were relatively discrete and known.  The public interest was limited to ensuring that the process was transparent and that the community could be sufficiently informed of the decision and the reasons for it.  The applicant’s interest was limited to preserving his personal privacy in respect of past conduct.

Here, the public interest goes beyond transparency and openness in regard to a completed hearing process.  Rather, consideration must be given to the public interest in enabling the Law Society to pursue its core mandate of protection of the public by engaging in additional prospective processes arising from the evidence disclosed in this matter.

The Law Society’s ability to take additional steps for the protection of the public following the conclusion of this matter is a significant factor to consider in balancing the competing interests.

On the other hand, the considerations militating in favour of restrictions on disclosure of the Confidential Information include not only the Applicant’s personal privacy, but also matters of broader public interest, including avoiding additional new harms to the Applicant and others.

The hearing panel’s order limited access to portions of the hearing transcript and the findings.

The underlying admissions issue

The Applicant…admitted to collaborating with another student (“Student 1”) in respect of two Professional Legal Training Course (“PLTC”) assessments (together, the “Assessments”) when students were expressly and repeatedly instructed that such collaboration was prohibited.

In this matter, the Law Society took the position that, notwithstanding the seriousness of the Applicant’s conduct, if this Panel accepted the Applicant’s evidence explaining how and why she engaged in the prohibited collaboration, it would be open to us to conclude that the Applicant is of sufficiently good character, repute and fitness to be called and admitted.

 The Panel found the Applicant to be credible and forthright, including with respect to her explanation of her admittedly inappropriate conduct.

[Given our conclusion in that regard, and in light of the Applicant’s particular circumstances, which are set out in greater detail below, the Panel finds that the Applicant has met the test and is eligible to be called and admitted.

The similarity of drafting between applicant’s submission and that of another student had been noticed. 

Applicant admitted the violation when confronted and provided incriminating Facebook messages

Student 1:      A little worried about getting done for working together if our shit looks too much alike.  But trust we can figure out a way not to plagiarize each others [sic] crapola.

Applicant:      Ya I’m super paranoid about that shit so you don’t need to worry about me taking yours or anything.

(together, the “Facebook Messages”)

The Applicant testified that she was surprised to see the reference in Student 1’s message to “working together.”  She recalled that, at the time, she had associated “cheating” with plagiarism.  That is the reason that, in her response, she had stated she would not take Student 1’s work.

In cross-examination, counsel for the Law Society put it to the Applicant that the Facebook Messages in fact showed that she was “at pains to avoid getting caught” collaborating.  The Applicant disagreed with this proposition.  She testified that she was focused on her concern about plagiarism, not collaborating.

In her favor

The Applicant’s behaviour following the discovery of her collaboration speaks even more favourably to her good character than was the case in Cattermole.  There, the student initially denied her plagiarism to both her principal and the Deputy Director of the Alberta bar admission course.  Nonetheless, such conduct in that matter did not result in the student being denied call and admission, although it is important to recall that Cattermole was a discipline, rather than a credentials matter.  In any event, the Hearing Committee determined that only a reprimand was required, at least in part, due to the stresses that the student had experienced leading up to her misconduct in light of the negative consequences that she had already suffered.

The balance of the interests of privacy and the public interest in the bar admissions process is a difficult one to strike.

As an example , I am previously on record that Louisiana in particular offers little guidance in articulating standards and reasoning in conditional  admission matters.  (Mike Frisch)