Thursday, April 22, 2010

Alain Préfontaine and conflict of interest

Alain Préfontaine is the lead government lawyer who told the Military Police Complaints Commission inquiring into the Afghan detainee scandal to go pound sand this past Tuesday.

The CBC is now reporting that
Préfontaine may be in a conflict of interest.* He vigorously cross-examined witness Richard Colvin last week in his inimitable abrasive style, but he once claimed Colvin as his own client on the same matter. And thereby hangs a tale.

Last July 28, a letter was sent under
Préfontaine's signature to 29 witnesses who had been called to appear at pre-hearing interviews. In effect, he warned them to keep their mouths shut. Colvin, one of those witnesses, retained private counsel, Lori Bokenfohr; the rest got the message, and declined to appear.

Bokenfohr wrote a blistering letter to Pr
éfontaine on October 13, a week after hearings during which, according to Bokenfohr, Prefontaine had misled the Commission. She didn't mince words:

Your statements last week to the Commissioner regarding the reasons other Government servants have declined to cooperate belie the content of your earlier correspondence to such individuals. From our perspective the willingness of Crown servants to cooperate with the Commission has been a matter over which you exerted early and profound influence. This is in contrast to the submissions you made last week, wherein you advised the Commissioner that witnesses and subjects were simply exercising individual human rights in declining to cooperate. We are in fact concerned that your submissions on this issue may have had the effect of misleading the Commissioner.

Bokenfohr's letter should be read in its entirety. Préfontaine gave every indication to the Commission that the 28 out of 29 witnesses who refused to appear did so of their own volition. But Bokenfohr had a copy of his July 28 letter, couched in language that was clearly meant to scare them off. Then the witnesses were apparently misdirected by Préfontaine, and a conflict of interest ignored:

You closed the letter by “strongly” suggesting that witnesses and subjects obtain legal advice before deciding whether to be interviewed, and you directed them to named Department of Justice lawyers. You did not, as required by Law Society rules, advise that the Department of Justice was precluded by conflict of interest from simultaneously representing Canada, witnesses, and subjects, nor did you recommend Crown servants seek the advice of independent legal counsel.

The latter might have been a good idea, as indicated earlier in her letter:

We expect that [Préfontaine's] description of the pre-hearing interviews would unnerve even the most cooperative Government employee, and it is thus hardly surprising that only one witness – my client has agreed to navigate the minefield you describe. He is in a position to do so only through access to legal advice provided by non-Government legal counsel. One must question whether other Government servants would be similarly willing to cooperate if they had the benefit of independent legal counsel. With independent legal advice, other Government servants might also overcome – as Mr. Colvin did – the chilling effect of your July 28 letter. If other witnesses had agreed to cooperate, my client would not now be uncomfortably alone among witnesses.

It is no wonder that Préfontaine, before the Commission the very next day, objected strongly to the introduction of Bokenfohr's letter into evidence. But he did so on the basis of solicitor-client privilege!

Was Colvin his client? Read the October 14 transcript and judge for yourself.

Préfontaine argued two things: first, his July 28 letter had been sent to all 29 witnesses, so that disclosure of excerpts in Bokenfohr's letter allegedly violated the solicitor-client privilege of the other 28. But--and this is the crux of the matter raised in the CBC report--he also claimed that, as a "putative witness," Colvin himself was effectively represented by him before Bokenfohr had been retained.

In his own words:

So the letter is privileged because obviously it was a communication between a lawyer, myself, and the persons who were either at that time already my clients because they had formally retained me or were about to be because they are entitled to legal representation at public expense and usually through the Department of Justice. [153-4]

And I will say that the only reason her client became privy to that was at the time that the letter was sent to him, although he hadn't formally retained me and eventually decided to retain Mme. Bokenfohr instead, he was in the class of putative clients.
THE CHAIR: I must say I've never heard the term "putative clients" before.[157]

[Colvin] was part of the class of persons who were entitled to legal representation. In accordance with the Treasury Board policy, legal representation is normally provided by the Department of Justice, and therefore, at that point, he was a putative client. Putative means that, until he confirmed it, we were in a client-solicitor-like relation because, if he was to get legal advice at public expense, it would have been through the team that I have the privilege of leading. [166]

In the course of events, Préfontaine's letter of July 28 and Bokenfohr's of October 13 ended up in the record earlier this month (see pp.142-43) after the government withdrew its objection to the filing of the Bokenfohr letter. Perhaps this was because it had already appeared on Wikileaks by October 15 (search on "Bokenfohr": the actual entry is no longer up), so the cat had been well out of the bag since early last Fall. And, if it were to be placed into evidence, with its excerpts from Préfontaine's July 28 letter, it makes sense that the latter would also be filed.

As noted by Bokenfors, "the Department of Justice [is] precluded by conflict of interest from simultaneously representing Canada, witnesses, and subjects," but that is precisely what the department has been attempting to do. Hence it did not appear to pose a problem for Préfontaine to represent Colvin at one point (whether "putatively" or not) and cross-examine him furiously on behalf of the government later--but other legal authorities may well not be of the same opinion.

Meanwhile, documents essential to the pursuit of the inquiry have been choked off by the Harper government, to the point that the inquiry itself is threatened.

UPDATE: Commenter Holly Stick says she liked my earlier picture better. Given the thuggish behaviour of the person in question, I reproduce it here:

[Big h/t to reader Holly Stick]

*As reported:

Préfontaine, the senior counsel and director general in the Department of Justice, cross-examined Colvin last week as Colvin testified at the Military Police Complaints Commission. Their exchanges were sometimes rough and acrimonious.

Last October, before the same commission, Préfontaine told the commission he represented Colvin. He argued that as a government employee, Colvin was his "putative client" and that he represented him, and that they were engaged in a solicitor-client relationship.

According to the rules that govern Ontario lawyers, a lawyer who has acted for a client is not supposed to act against the same person in the same case.

James Morton, former president of the Ontario Bar Association, said: "You cannot take a position adversarial to your client in the same matter that you represented your client."

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