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James:
I have reviewed a large portion of the Bloomfield files, including those that have been deemed by the archives as subject to solicitor-client privilege. The files were were first made available to the public in 2010 after Montreal researcher Maurice Phillips took the archives to court to get access to his papers. As part of the court settlement, the archives made certain files available for the public to review in 2010 and other files i.e. those deemed to be subject to solicitor client privilege were allowed to be reviewed 50 years after the last date in the file. Over a number of years I made repeated visits to the archives to review files when they reached 50 years of age, and in all of the many hundreds of letters and documents that I have read, none of them have any evidence of wrong-doing.
In Canadian case law there is a legal test, and if any letter or document that the archives deems as been subject to privilege does not pass the test, then the court should rule that the archives should no longer block access to that letter or document. It is true that individual clients, if they are still alive, can waive privilege, but the easiest way to proceed with this case is for the court to appoint a lawyer, who is not connected to the government to review the documents and then inform the court of their opinion.
John
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Have not heard or seen anything on the outcome of the Canadian lawsuit concerning the Louis Bloomfield personal papers. Did I miss it?
James Lateer
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James Lateer Wrote:Have not heard or seen anything on the outcome of the Canadian lawsuit concerning the Louis Bloomfield personal papers. Did I miss it?
James Lateer
Hi James:
Have finally had a chance to speak the archive's lawyers and the Quebec Law Society who have intervened in my case. The court assigned a prothonotary judge to my case and we had a teleconference. In it we discussed the legal issues involved with my case. The archives have based their case on the solicitor-client privilege. I told them that Bloomfield's papers are not subject to privilege. The prothonotary judge suggested that the archives review his papers to ensure that they are subject to privilege but I rejected that because they would, no doubt, arrive at the same decision they they did before. I did however agree to allow an independent third party, a lawyer who is not connected to either Justice Canada or the archives to review them. Archive's lawyers agreed to take my offer to their client. Next teleconference is on Nov. 30, and at this time I will find out what their response is.
John
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John Kowalski Wrote:James Lateer Wrote:Have not heard or seen anything on the outcome of the Canadian lawsuit concerning the Louis Bloomfield personal papers. Did I miss it?
James Lateer
Hi James:
Have finally had a chance to speak the archive's lawyers and the Quebec Law Society who have intervened in my case. The court assigned a prothonotary judge to my case and we had a teleconference. In it we discussed the legal issues involved with my case. The archives have based their case on the solicitor-client privilege. I told them that Bloomfield's papers are not subject to privilege. The prothonotary judge suggested that the archives review his papers to ensure that they are subject to privilege but I rejected that because they would, no doubt, arrive at the same decision they they did before. I did however agree to allow an independent third party, a lawyer who is not connected to either Justice Canada or the archives to review them. Archive's lawyers agreed to take my offer to their client. Next teleconference is on Nov. 30, and at this time I will find out what their response is.
John
It sounds good...but WHO would pick this 'independent' lawyer?!?!?! Spooks will be watching and pulling strings to effect a lawyer who will give a thumbs down, IMO. But, good luck! Louis Bloomfield was a spooky man!
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
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Mr. Kowalski--I would think at a minimum that the archives should have to list the items that they think are subject to lawyer-client privilege, and write at least one sentence as to the grounds they cite for that particular item to be suppressed.
Another really strong possibility is that you could subpoena any internal records and communications between people inside the archives which discuss the records. Maybe those internal communications could be examined by the judge privately in his chambers, without giving away anything privileged.
Finally, has the archives actually been more specific in the pleadings in stating their reasons for suppression other than merely stating a conclusion "i.e. these are lawyer-client papers."
I would move the Court to demand a statement in court that the items actually involve a client who had a lawyer-client relationship. If a letter mentioned the United Nations, for instance, was the United Nations a "client" of Bloomfield? What about personal letters to his family or friends?
It is my understanding that the mere disclosure that an attorney represented a particular client is not subject to the privilege. Only communications. I think this is a matter law. The mere fact of representation is not privileged. If that could be established by case law, then the judge could at least require the Archives to list the clients who triggered the suppression and represent that the communications involved actually involved one of those clients.
Then you could argue the legal issue as to how you define "client" in a case like that of Blooomfield. (Is a spy agency a "client"?).
Sometimes you can hire a lawyer just to show up and argue AT ONE HEARING ONLY and thus limit the cost of his services to just that hour or so at the hearing. That is done with traffic tickets, for instance. The fees for those (in my locale) are maybe $150 from what I have seen advertised.
A further thought is to ask the Judge to issue a "preservation of evidence" order so that the Archives can't just destroy these items. They could then be available for future research if the laws change or if other people have need of the items for other purposes such as using them in a criminal case or a lawsuit.
If these are really "lawyer-client" papers, then legally they have to be preserved indefinitely for possible future use by the client. If you argue they are client papers, then ipso facto you have to preserve them and not destroy them because the belong (for some purposes) to the client.
James Lateer
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As a further thought: is the Archives of Canada a public entity? In the US, we have the Administrative Procedures Act. Under this Act, any decision of an administrative agency (except those specifically excluded by law) can be appealed to a court.
The test in this type of case is "was the decision of the agency supported by the evidence"? At least if an appeal like this is made to a court, you can smoke out the agency and force them to present the evidence to a court in some form or other.
In the US, this type of appeal is almost automatic in a Social Security Disability case and also under appeals for Unemployment Compensation. I don't think it would be difficult to find a lawyer experienced in this type of case and might at least come up with some way to pay for his time. Maybe he would take the case if some of the people on this site would pledge $50 or $100 each if he achieved success.
I think that a publisher like TrineDay or of similar type would agree to a contingent support deal with a lawyer. (I'm not sure contingent fees are legal in Canada).
I think there are some "fat cats" who post here who might help out. (Maybe I'm wrong--I'm sure not a fat cat).
A lawyer might be willing to think about something like that and take a gamble.
James Lateer
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James:
Your comments are all very good and one of them was suggested by the prothonotary judge during the last teleconference. She suggested that the archives create a "privilege log." What this is, is someone who is independent, how this person will be chosen has yet to be determined, would review each letter that has been considered as subject to privilege would write the details about the letter in a log and indicate if that letter is subject to privilege.
The archives have not been very specific about why these documents are subject to privilege and I told this to the court and it is one aspect of my case. Archives was very vague about why they were subject to privilege, and they provided no evidence to prove that an actual lawyer examined each of his letters, and there are thousands of them. There is a case in Canada where a judge stated that just because a lawyer sends a letter to someone, it is not subject to privilege. The judge also stated that each letter must be examined to determine if it is privileged communication. This case is important because it requires each letter to be examined, it is not enough for the archives to state that he is lawyer therefore his letters are privileged.
A problem with the letters is that they do not specify a client. In Canada, for a lawyer's communication to be private, it must specify a client and a legal issue that the lawyer is working on behalf of his client. The Bloomfield letters do not specify a client such as the United Nations or anyone else for that matter.
Our version of the administrative procedures act is an application for judicial review. This allows any Canadian citizen to ask the federal court of Canada to review a decision made by a government department or agency. In my case I submitted an application to the court to review the archive's decision to withhold Bloomfield's documents from me.
Subpoenaing internal records is a good idea and it is an option I am considering. I may ask for this if a deal can't be worked out with them. I already have some of their internal records from the case brought by Maurice Phillips, a Montreal based researcher who took them to court twice over these files.
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Mr. Kowalski: I was struck by a more fundamental problem. If a lawyer dies, the client papers are put into the custody OF ANOTHER LAWYER. Privilege in that case means that only a lawyer (bound by legal ethics) can see them.
The Archives personnel aren't lawyers. Every time an Archivist looks at a client letter from Bloomfield, that client's privilege is being violated.
Theoretically these paper, if privileged, should be preserved FOR ETERNITY in the custody of an attorney. I don't see how an archives can even claim they are preserving lawyer-client privilege by having custody of the papers. They aren't themselves lawyers.
Legally, why is their having the papers any different than you having them? Doesn't add up to me.
James Lateer
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James:
It does not add with me either and essentially what has happened is a miscarriage of justice that I hope will be rectified if I win my case.
John
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Let us hope for the best here.
There should be some really interesting stuff in Bloomfield's papers.
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