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When controversy surfaced last fall over whether police lawyers could vet officer incident notes, the Ontario Provincial Police Association asked for the opinion of a prominent legal ethics lawyer.

Gavin MacKenzie, former treasurer of the Law Society of Upper Canada, was hired to weigh in on nine questions regarding how officers and their lawyers interact after a civilian death.

Two of those questions lie at the heart of an ongoing Superior Court case. Before being questioned by the Special Investigations Unit, can police officers have their notes and comments approved by a union lawyer? And can one lawyer represent both witness officers and the officer directly under investigation?

The answer to both, according MacKenzie, is yes.

“We asked for his opinion, an outside legal opinion, knowing full well Mr. MacKenzie could have sided against us,” said OPPA president Karl Walsh. “We gave this opinion to (SIU director Ian Scott) and he ignored it.”

Scott has asked a Superior Court judge if officers are violating the police act by having their notes approved by a lawyer being before intervened. He also believes that when one lawyer represents both a witness and subject officer a section of the act that calls for segregation is being broken.

MacKenzie was asked whether the law society’s Rules of Professional Conduct “allow for one counsel to represent multiple officers involved in an SIU investigation where no conflict of interest arises.”

But lawyer Julian Falconer, who is representing the families of two men shot dead by OPP officers, said the phrasing of that question makes it impossible to answer.

“In my view it will always be a conflict of interest for the same lawyer to represent the subject of an investigation and the key witnesses to that investigation,” he said. “At the end of the day, lawyers must be governed by perception and optics and I believe this simply looks terrible.”

MacKenzie declined to comment.

Last September, Scott sparked outrage within the province’s policing community when he announced he was unable to decide whether an OPP officer was guilty of wrongdoing in the shooting death of a Peterborough man, Levi Schaeffer. Scott said the reason was both the shooter and his partner had their notes vetted by a police union lawyer.

“This note-writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity,” Scott wrote. “In this most serious case, I have no informational base I can rely upon.”

The case began on Thursday amid a host of controversy. Four lawyers from the Ministry of the Attorney General were initially representing Scott in the proceedings, but at the 11th hour withdrew. Attorney General Chris Bentley was accused of buckling to intense pressure from the police community.

On Friday, Scott announced he had retained renowned criminal lawyer Marlys Edwardh.

The hearing resumes Tuesday.