Annual Report: 2002-2003

B. Demystifying the Investigative Process

Lawyers have no greater role or rights during a formal proceeding than would counsel for a witness in a civil judicial proceeding or a proceeding before a commission of inquiry.

During the formal proceeding, witnesses and their counsel are asked to communicate only with the presiding officer and not with each other. Should either the witness or counsel wish to communicate with each other, the presiding officer will ordinarily agree to such a request and will adjourn for the purpose of permitting the witness and counsel to have a private communication.

It is not the role of counsel to examine his or her witness. However, at the end of the questioning by the presiding officer, counsel may ask the presiding officer for permission to put questions to the client--a request which, ordinarily, will be granted.

Counsel will not be permitted to represent a witness if the counsel also represents other witnesses or the witness's employer, unless it is reasonably possible--by means of confidentiality orders and undertakings--to ensure that the witness has an opportunity to offer evidence "in private" and that the private nature and integrity of the investigation is preserved.